Saturday, February 28, 2009
Ind. Decisions - 7th Circuit upholds $80,000 sanction against attorney in Illinois case
Friday, February 27, 2009
Ind. Decisions - A number of transfers granted today
The transfer list will not be available until Monday, March 2, but the ILB has received notice of six transfer petitions granted today, Feb. 27th.
Jim Kovach v. Caligor Midwest -- 49A04-0707-CV-406 -- 2 Petitions both granted -- 2/27/09 -- This was a 29-page, 2-1, July 26, 2008 COA opinion. See ILB summary here - 5th case. From the facts: "Matthew was prescribed 15ml, or one-half of the Cup’s volume, of Capital of Codeine. Although Nurse Robinette stated that she gave Matthew only 15ml of Codeine, Jim, who was in the room at the time, testified that the Cup was completely full. Matthew drank all of the medicine in the Cup. At 11:20 a.m., he was discharged from Surgicare. Later that day, after arriving home, Matthew went into respiratory arrest. He was transported to Bloomington Hospital, where he was pronounced dead of asphyxia due to an opiate overdose. The autopsy revealed that Matthew’s blood contained between 280 and 344 nanograms per ml of Codeine, more than double the recommended therapeutic level of the drug."
Anita Inlow v. Jason Inlow -- 29A02-0712-CV-1039 -- 2/27/09 -- This was a 2-1, Sept. 18, 2008 COA opinion. See ILB summary here. "She argues that Indiana Code § 34-23-1-1 requires the payment of funeral and burial expenses from a wrongful death award to a decedent’s estate only where the award specifies what portion is attributable to funeral and burial expenses. Concluding that Inlow’s funeral and burial expenses were properly reimbursed to his estate, we affirm."
State v. Jason Cioch -- 79A05-0804-CR-218 -- 2/27/09 -- This is a NFP opinion from Dec. 11, 2008 that I'm sorry to have missed the first time around. Judge Robb wrote:The State brings this interlocutory appeal following the trial court’s suppression of evidence of the result of a breathalyzer test. On appeal, the State raises a single issue, which we restate as whether the trial court abused its discretion when it suppressed the breathalyzer test result printout because it contained an incorrect time of day. Concluding that the State has failed to meet its burden of establishing the foundation for admitting the evidence, we affirm. * * *R.Y. v. Marion County Dept' of Child Serv's -- 49A02-0804-JV-394 -- 2/27/09 -- This is a 16-page, NFP opinion from Oct. 31, 2008.
The statute and regulations regarding the administration of the breath test and the admissibility of its results do not expressly contemplate the use of outside evidence to supplement the evidence ticket. The evidence ticket here contains inaccurate information regarding the time of the test. Because the State’s outside evidence cannot be used to cure the deficiency, the evidence ticket is not the result of approved techniques for administering the test nor is it an accurate record of the test. Therefore, the trial court did not abuse its discretion in suppressing use of the evidence ticket at trial.
Elizabeth Thomas v. Blackford Cty Area BZA, Oolman Dairy. -- 05A04-0711-CV-731 -- 2/27/09 - This is a NFP opinion from July 25, 2008. See ILB summary here - last summarized case. From the opinion:The evidence presented at the hearing demonstrated a genuine issue of material fact regarding Thomas’ standing. Pursuant to Ind. Code § 36-7-4-1003(a), Thomas has standing to file a petition for writ of certiorari if she is “aggrieved” by a decision of a board of zoning appeals * * * Viewed in Thomas’ favor, the evidence establishes an issue of fact as to whether Thomas will suffer unpleasant odors and a loss in property value. Therefore, resolution of the case under T.R. 56 was improper.
We remand to the trial court to afford the parties an opportunity to complete their presentation of evidence, if they have not done so already, and to render a decision on the merits. Reversed and remanded.
In addition, by a 3-2 order issued yesterday, the Court vacated its Sept. 23, 2008 grant of transfer in the case of Scottie Adams v. State of Indiana, stating, inter alia:
The Court of Appeals opinion reported as Adams v. State is no longer vacated under Appellate Rule 58(A) and is REINSTATED as Court of Appeals precedent.The dissent, written by J. Boehm, in which J. Sullivan concurs, is 5 pages.
Ind. Decisions - One today from Tax Court
Todd S. and Dawn E. Coombes v. Washington Township Assessor, Hamilton County Assessor, et al, a 7-page opinion. - "Petitioners explain that in 2002 (before Bridgewater was created and before their land was even their land) the applicable 2002 neighborhood valuation form provided that unplatted, vacant rural land located just southeast of the intersection of 161 st Street and Carey Road in Carmel, Indiana was to be assessed at $35,000 for the first acre and $5,300 per acre beyond that. The Petitioners maintain that if local assessing officials believed some other value more accurately reflected the 2003 value of their lot specifically, and the lots in Bridgewater generally, they were required to amend the values set forth in the 2002 neighborhood valuation form. The Petitioners continue that in order to amend the form, local assessing officials were first required to give notice to taxpayers of those proposed values and an opportunity to be heard thereon. Because this was never done, the Petitioners contend that the Indiana Board erred when it failed to declare their assessment void and reinstate the land's 2002 assessed value of $42,000.
"The Court, however, disagrees. * * *
"Thus, as the Indiana Board properly concluded, there was no need for local assessing officials to amend the applicable 2002 neighborhood valuation form. (Cert. Admin. R. at 62.) As a result, the Petitioners' procedural due process rights have not been violated."
Ind. Decisions - Court of Appeals issues 6 today (and 6 NFP)
For publication opinions today (6):
Termination of Parent-Child Relationship of H.T.; Anthony Carbonatto v. Marion Co. Dept. of Child Svcs. - "Simply put, there is no need for the extreme measure of permanently terminating Father’s right to be a parent to his daughter. The trial court clearly erred in concluding that the State proved that H.T.’s well-being is threatened by her Father’s involvement in her life. We reverse and remand with instructions that the trial court vacate its termination order. "
Rosemary Dean v. William T. Pelham - "We grant the Estate’s petition for rehearing for the limited purpose of clarifying that we analyzed the designated evidence under the appropriate summary judgment standard of review, but used imprecise language in stating our conclusion. We hereby restate our conclusion in terms of the appropriate standard: The designated evidence does not raise a genuine issue of material fact as to William’s intent with regard to Dean’s survivorship rights. We affirm our opinion in all other respects. "
Tiffany Whitlow v. State of Indiana - "There is sufficient evidence to support the jury’s finding that H.W. suffered serious bodily injury." The opinion cites other cases where, for instance, " Under these circumstances, the Indiana Supreme Court found that a lacerated lip, a knee abrasion, and a broken pinky finger fell below the line of serious bodily injury." Here, however, H.W. "was a seven-year-old child."
In Bruce Jones v. State of Indiana, an 8-page opinion, Judge Barnes writes:
Bruce Jones appeals the denial of his motion for the reappointment of a special prosecutor. We reverse and remand.Terry D. Dean v. State of Indiana - "Terry D. Dean appeals his convictions for two counts of dealing in cocaine as class B felonies.Dean raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by admitting evidence of Dean’s uncharged misconduct; and II. Whether the trial court erred by denying Dean’s motion for discharge under Ind. Criminal Rule 4(C). We affirm. * * *
The sole issue is whether the trial court properly denied Jones’s request for the
reappointment of a special prosecutor.
The record in this case is not clear. It appears that on October 23, 2006, the State charged Jones with Class D felony theft and alleged that he is an habitual offender. * * *
[W]e conclude that the original basis for appointing a special prosecutor—to avoid the appearance of impropriety—still existed, even after the dismissal of the impersonation of a public servant charge. The dismissal changed the form of the case against Jones, but the substance was largely unchanged. The trial court erred in not appointing another special prosecutor or, alternatively, permitting the appointed the special prosecutor to withdraw his appearance. * * *
We reverse and remand for the appointment of a special prosecutor in the forgery and theft cases against Jones.
"Dean did not object to the setting of the May 21, 2007 trial date. In fact, on that trial date, he moved for a continuance. Nor did he object to the setting of the February 11, 2008 trial date on October 15, 2007. Rather, Dean waited until February 7, 2008, four days before the jury trial, to file his motion for discharge. Because Dean did not object to setting of these trial dates, any claim of a violation of Criminal Rule 4 resulting from the challenged congestion orders is waived. "
Richard Edward Faris v. State of Indiana - "This case required us to perform a delicate balance between ensuring that mentally disabled persons are not improperly denied their constitutional rights and not penalizing police for non-coercive conduct. Here, where Faris's interrogation did not take place in a custodial setting and the officers questioning him were unaware of his disability and did not engage in coercion, we cannot say as a matter of law that his confession was involuntarily given. We affirm the denial of Faris's motion to suppress. Affirmed. "
NFP civil opinions today (1):
In the Matter of A.J., A.M., and A.R.F. v. Vanderburgh Co. Dept. of Child Services (NFP) - "Alaina J. (“Mother”) appeals the involuntary termination of her parental rights, in Vanderburgh Superior Court, to her children, A.J., A.M., and A.R.F. On appeal, Mother claims the trial court abused its discretion when it denied her motion for a continuance. Concluding that the trial court’s denial of the motion to continue did not constitute an abuse of discretion, we affirm. "
NFP criminal opinions today (5):
Ind. Decisions - 7th Circuit issues one Indiana decision today
US v. Dunson (SD Ind., Judge Tinder), a 2-page, per curiam opinion, concludes:
Shortly after Dunson filed this appeal, we held in United States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008), that the Indiana crime at issue is a “violent felony” for pur-poses of the Armed Career Criminal Act, see 18 U.S.C. §§ 924(e)(1), (2)(B)(ii). “Taking flight calls the officer to give chase,” we reasoned, and “dares the officer to need-lessly endanger himself in pursuit.” Spells, 537 F.3d at 752. Our decision was informed by Begay v. United States, 128 S. Ct. 1581 (2008), and is not undermined by the Supreme Court’s most recent application of Begay, see Chambers v. United States, 129 S. Ct. 687 (2009) (holding that passively failing to report for service of a criminal sentence is not a “violent felony”). Although Dunson was not sentenced as an armed career criminal, we interpret “violent fel- ony” as used in § 2K2.1 the same way as “crime of vio- lence” in § 924(e). See, e.g., United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008). The district court thus prop- erly classified Dunson’s prior conviction for fleeing a police officer in a vehicle as a crime of violence. AFFIRMED.
Ind. Decisions - Mishawaka loses bid to hold Uniroyal liable for Mishawaka’s clean up costs
Christopher A. Nuechterlein, United States Magistrate Judge for the ND Indiana, South Bend, ruled yesterday in a 14-page opinion, City of Mishawaka v. Uniroyal Holding, that begins:
All things must come to an end.
This litigation concerns approximately 43 acres of land located at 312 N. Hill Street in Mishawaka, Indiana, which for over one-hundred years was a manufacturing site. The Mishawaka Woolen Manufacturing Company, incorporated in 1874, became a subsidiary of the United States Rubber Company in 1922 and manufactured rubber footwear and other products at the Hill Street site. In 1967, the United States Rubber Company changed its name to Uniroyal, Inc.
The Hill Street site eventually encompassed 58 buildings, over 1.7 million square feet of industrial space, and employed nearly 10,000 workers. In April 1, 1997, industrial operations came to a halt at the Hill Street site.
The primary question presented in this lawsuit is whether the Defendant, Uniroyal Holding Inc., a corporate successor to various legal entities at the site, is legally obligated for various environmental clean up expenses at the Hill Street site. For the reasons stated in this opinion, this Court concludes that it is not.
Ind. Decisions - "Reckless driving conviction reversed"
A story in the Brazil Times Thursday, reported by Ivy Jackson, about the Feb. 17th Court of Appeals NFP reversal in the case of Cody D. Wright v. State, a 4-page opinion by Judge Najam. Some quotes from the story:
According to court documents, at a time when local schools were letting out for the day and it was allegedly beginning to rain, Clay County Sheriff's Deputy Chris Robinson reported that he clocked Wright driving eastbound on County Road 1000 North at 62 miles-per-hour (mph) in a location officially posted at 35 mph.
Akers believed the speed of Wright's vehicle, coupled with the fact children could have been injured had he lost control of his vehicle and slammed into a school building or another vehicle traveling in the vicinity, was sufficient evidence to order a guilty verdict.
Examining Wright's prior driving record to the reckless driving charges while determining a sentence, in open court at the time of sentencing, Akers said he felt it showed Wright's propensity to ignore basic traffic laws and, therefore, warranted a maximum sentence.
The State of Indiana allows a judge to sentence a defendant to 180 days incarceration upon conviction of a class B misdemeanor reckless driving charge, which is what Akers did.
At the end of the trial, McGlone argued the Clay County Prosecutor's Office failed to provide adequate evidence to prove his client's guilt, which is why he appealed the judgment.
The Indiana Court of Appeals only reviews the probative evidence supporting a judgment and whether the facts presented during a trial proves a defendant was guilty beyond a reasonable doubt. If there is substantial evidence to support the conviction, the court of appeals will not set aside a verdict.
According to a Memorandum Decision filed by the court of appeals on Feb. 17, the transcripts from the bench trial were used to determine a ruling.
In order to prove reckless driving, the State was required to prove Wright recklessly drove a motor vehicle at such an unreasonably high rate of speed under the circumstances as to endanger the safety or the property of others.
While undisputed evidence clearly showed Wright was driving almost twice the legal speed limit, the court of appeals determined no evidence was presented proving he endangered the safety or property of others.
The judges overturned the verdict in the case because the evidence only shows the officer was concerned for the safety of children who were "about to be let out of school" and there was no proof that anyone was present and in actual danger at the time of Wright's speeding offense.
Ind. Courts - More on: Two stories today in continuing, and confusing, Delaware County saga
Updating this ILB entry from Feb. 28th, Rick Yencer reports today under the headline "Indiana appeals court blocks McKinney contempt hearing." Some quotes:
That means Dailey will not conduct a hearing, set for today, on a request by attorneys for Mayor Sharon McShurley's administration that McKinney and Deputy Prosecutor Eric Hoffman be found in contempt of court.
The request was based on the prosecutors' failure to pay a $232,112 judgment, issued by Dailey, as reimbursement for legal fees and other money stemming from drug forfeiture cases.
The stay of all proceedings by Dailey -- in an order signed Thursday by John G. Baker, chief judge of the Court of Appeals -- indicates that any future hearings on law enforcement costs, non-cash assets and other forfeiture cares will remain on hold, subject to appellate court rulings on appeals of Dailey's earlier rulings.
Courts - More on: Follow the McCafferty murder trial and the media's efforts to cover it via blog and otherwise
Nothing new from the "Reporter's Blog" (here), the latest entry right now is from Thursday afternoon. But court is due to reconvene at 9:30 AM.
Meanwhile, there has been action on the appeal. The Cincinnati Enquirer reports:
Newport -- Cameras for now will remain outside the courtroom where Cheryl McCafferty is on trial for the killing of her husband in 2007.The Enquirer (like the Kentucky Post) has its own special page devoted to coverage of the trial.
State Appeals Court Judge Michelle Keller on Thursday rejected a plea from three local television stations and NBC News for an emergency order to allow cameras back into the courtroom to broadcast the trial.
The appeal made by WLWT(Ch. 5) WCPO(Ch. 9) and WXIX(Ch. 19) remains on the docket but could take 20 days to be heard. The trial is expected to last three weeks.
Campbell County Circuit Judge Julie Reinhardt Ward on Monday ordered all electronic recording devices banned from the courtroom. Ward decided to ban cameras after attorneys for the television stations appealed the judge's prohibition on live video broadcasts on the Internet of testimony and live blogging of the trial.
Keller, in her order denying emergency relief, found the media has a right to attend the trial but does not have any more rights beyond that of the general public and no constitutional right to have testimony recorded and broadcast.
"While the order limited the means by which the media could have that access, it did not limit or prohibit access," Keller said.
Environment - More on: "Indiana ash ponds pollute bird habitat, drinking water: Situation prompts look at coal-waste storage standards"
The focus of the story, which has several photos and a map, is the coal-ash pond of the Gibson County, Ind., Duke Energy coal plant. The story begins:
PRINCETON, Ind. — The danger of combustion waste from coal-fired power plants became big news in December, when a dam holding back a mountain of ash at a Tennessee Valley Authority plant collapsed, spreading a billion gallons of sludge over several hundred acres near Knoxville.
By the time that slide occurred, however, the problems that coal-ash residue can cause had already been part of life for nearly two years here at the site of the Gibson power plant, the nation's third-largest coal facility owned by Duke Energy.
Ash ponds — ponds filled with ash waste — at the Gibson plant tainted both a new wildlife sanctuary for endangered birds and the drinking water of the small community of East Mount Carmel in 2007. Two years later, the cleanup is still ongoing.
The problems here, as well as those in Tennessee and elsewhere, have environmental advocates calling for national standards for handling the massive quantities of ash and other coal-combustion wastes — more than 125 million tons a year, according to the American Coal Ash Association.
Ind. Decisions - "Justices weigh judge’s handling of $440,000 suit"
Yesterday's oral argument before the Supreme Court in the case of Rudrappa Gunashekar v. Kay Grose is the subject of a story today in the Fort Wayne Journal Gazette by Niki Kelly, headed "Justices weigh judge’s handling of $440,000 suit." The long and complex story begins:
NDIANAPOLIS – The Indiana Supreme Court struggled Thursday with whether an Allen Superior Court judge violated the rights of a couple in a civil case by denying a motion to continue the trial after their attorney withdrew.Here is the Court of Appeals opinion from Aug. 12, 2008. Here is a link to access yesterday's oral argument.
The five justices heard oral arguments in a case in which Kay Grose sued Rudrappa Gunashekar and his wife, Jayashree Gunashekar, accusing them of stealing $130,196 from her company.
According to court documents, the lawsuit grew out of a 2002 fire at a commercial building owned by the Gunashekars. Rudrappa Gunashekar hired Grose and her company, America’s Affordable Housing, to repair the property.
In September 2002, an insurance company issued a check for $130,196, payable to Rudrappa Gunashekar and Grose. Gunashekar deposited the entire check in a bank account and made a partial payment to Grose. The check Grose was given was not honored.
Allen Superior Court Judge Nancy Eschoff Boyer found in favor of Grose in a 2007 bench trial – awarding $147,337 in payment and $296,520 in other damages.
Attorneys on Thursday laid out the timeline, which is crucial in the case.
Thursday, February 26, 2009
Ind. Law - More on: "House weighing satellite voting bill"
A fix for the partisan Lake County voting feud that trudged through a half dozen courts last fall drew no dissent on its way out of the Indiana House late Wednesday.
State Rep. Vernon Smith, D-Gary, won a 99-0 vote for House Bill 1243 [ILB - sic, should be 1423] , which would require Lake County to operate early voting centers in Gary and Hammond during the 29 days prior to an election. The measure now moves to the Senate.
State law already requires Lake County to operate one early voting site in Crown Point and allows the county elections board to open additional centers through a unanimous vote.
The Democratic-controlled board deadlocked 3-2 along party lines last fall, but Democrats pressed ahead with additional early voting locations in East Chicago, Gary and Hammond.
Republicans challenged the move, but they couldn't find a county, state or federal judge to stop the early voting once it had begun.
Smith's legislation only would apply to counties with a population of more than 400,000 -- Marion and Lake. And within those counties it only would mandate early voting sites in cities with a population greater than 60,000.
That means the Lake County elections board still would need a unanimous vote to open an early voting center in East Chicago.
Environment - Wood stoves and wood-fired outdoor boilers still a problem
The ILB has had dozens of entries, going back as far as Dec. 2005, on the regulation of wood-fired outdoor boiler in Indiana. IDEM originally was going to do it, then backed off and left local government to deal with the problem on its own.
02/26/09 This week City Councilman Mike Delp brought forth an issue to the Common Council that a constituent recently brought to his attention.What city is this? The story doesn't say, but I'd guess Plymouth.
Delp said, “I’m seeking your words of wisdom on wood burning stoves and the smoke issue they include.” He mentioned that the Council had discussed the issue a couple of years ago. He said that a resident living in the North Michigan Street area called complaining of the smoke that comes from the wood burners. Delp said they lady had her clean laundry hanging on her line and had to rewash it because of the smoke.
Councilman Chuck Ripley was on the Council when the issue was discussed several years ago. He said, “We looked at the issue and couldn’t see anything to tackle the wood burning units.”
Building Commissioner Keith Hammons explained that city code requires the smoke stack to be at least 2 feet higher than any roofline within 10 feet of the unit.
Delp said it appears that some citizens using the wood burners are not burning seasoned wood, but rather green pallets. He asked about the smoke being an air pollution issue.
No action was taken but the City Council may need to look for a solution if they receive more complaints.
Courts - Follow the McCafferty murder trial and the media's efforts to cover it via blog and otherwise
A murder trial underway in Newport, Kentucky - northern Kentucky, near Covington - is getting extensive coverage from the Kentucky Post and other media.
Reporter Jessica Noll provides "the minute-by-minute report of the Cheryl McCafferty murder trial" here. I have focused on only the entries dealing with the blogging/reporting issues, not the trial itself. Here is a quote from the first entry, from DAY ONE at 8:54 AM:
The courtroom, located at the Campbell County Courthouse on York Street in Newport, Ky., is on the second floor. The media is set up for the time being on the third floor, just down the hall from the jury lounge, awaiting further instruction and the start of what may be the trial of the year.From 9:06 AM:
"Dateline NBC" is one of the national media outlets bringing attention to the trial. However, it’s the local outlets that are rearing to go. Local stations and newspapers are set up with laptops on legs, sitting in chairs, waiting to get the OK to start blogging their surroundings and the trial proceedings.
On behalf of several local media outlets Attorney Jill Meyer of Frost, Brown and Todd, has filed a motion to talk to Campbell County Circuit Court Judge Julie Reinhardt Ward about permitting the media the cover the trial, including live streaming video online as well as blogging on the local Web sites.From 10:00 AM:
Currently, the media waits to hear what comes from that. According to Meyer, the judge would not hear a motion to allow Internet reporting, among other media items. Once the trial commences, Web reporters, without an order in place are placing their blogs and other content.
Judge To Hear Motion For Blogging:From 10:45 AM:
While the trial hasn’t commenced, the judge will be hearing a motion from Attorney Jill Meyer on behalf of the media here today.
According to "Dateline" producer Maryanne Rotondi and our own 9News’ Bill Price, who are at the doors of the courtroom, the judge has suggested that she will try to pull all media coverage from this trial pending the Internet reporting requests.
They said that Judge Julie Reinhardt Ward does not want to allow Web media to report the testimony of witnesses as it’s said because she wants to both sides to have the opportunity for a fair trial. It is possible that she fears the jury and/or witnesses will not be fair if they hear testimony and comments after the fact because it could sway their testimony or decision in the end.
The jury; however, is instructed not to watch or read the media once they are seated as part of the jury, as to not get a bias view of the trial while serving as a jury member.
Attorney For Media Meets With Media:From 1:46 PM:
Attorney Jill Meyer met with the media to give information regarding whether or not we would be allowed to blog from the courtroom, as well as post live moments to the Web as witnesses testify during the trial etc.
The judge at this time, Meyer relayed, has barred all cameras, still and video, from the courtroom as well as any blogging or reporting other than using a notepad and pencil.
"We were surprised at [her] reaction," said Meyer, who said they have filed with the court of appeals and hope to have a decision by today or Tuesday.
Meyer said that it sounds like we’re back in the 1950s.
"It’s a public courtroom for a reason—it’s the public’s right to know," she said. "She is restricting the right to do that."
We are, as the media, however, allowed to take detailed notes within the courtroom and then leave the courtroom to report the most up-to-date information.
Judge Calls Hearing Regarding Media In The Courtroom:From 2:00 PM:
Judge Julie Reinhardt Ward called a hearing Monday afternoon after a motion was filed by Jill Meyer, the attorney representing WPCO-9, WCPO.com, KyPost.com, WLWT-5, WXIX-19 and WKRC-12.
The judge barred all cameras and computers from the courtroom earlier in the day. The hearing was regarding a motion to reconsider those actions, as Meyer stated that they were "unconstitutional" and "in violation of the 1st Amendment."
The public has the right to be in any public hearing—which was the point that neither party disagreed with. However, the judge has the right to use her own discretion when it comes to the order of her courtroom.
During the hearing, that lasted roughly 10 minutes, the judge told Meyer that she is spending too much time worried about the media and not enough time with the case. Earlier in the day she denied bloggers from local media outlets to have access to the courtroom with computers in-hand. She also did not want testimony from the witnesses live-streamed via the Web or recited in its entirety.
Furthermore, the judge stated in the hearing that the media could; however, use "snippets" of witnesses’ testimony. (Later Meyer questioned the media, how it’s possible to define "snippets" of testimony.)
Meyer "respectfully requested a change" in her decision regarding cameras and blogs, but during her request the judge shook her head no.
Judge Reinhardt Ward asked the attorney to define what ‘blogging’ is for her. She asked is it not gossiping over the Internet?
"It’s not gossip—it’s more immediate news," Meyer said. "News media has the ability to deliver information in a variety of ways." And by blogging, she said, media can get the news to the public faster.
Meyer continued, "The information is out there—to impose on the media’s 1st Amendment rights based on speculation is an injustice."
The judge, however, said that her duty is to balance both the 1st Amendment rights of the media and the order of her court. She said that this is what she has done and stands by her initial ruling.
"You can write ’til your heart’s content—[I need to] protect a fair trial," the judge said to Meyer and those sitting in the hearing. "I need to focus on them [case], that’s my job."
Representatives from local media outlets, as well as producers from both "Dateline" and "48 Hours" were sitting in on the hearing. One producer said for the record that their recording was for a later broadcast and therefore would not infringe on any testimonial issues or the witnesses’ rights. But they were denied with the rest of the media.
"I don’t want to be unfair to either side," Reinhardt Ward said. "No cameras in the courtroom—that’s the ruling of the court—have a nice day."
Meyer Talks To Media:DAY THREE, 9:30 AM:
Attorney Jill Meyer talked with the media directly after the hearing long enough to tell us that she in deed would be filing an appeal. She said that the appeal might be on an expedited schedule—meaning that rather than wait for 20 days for a ruling, they may be able to get a temporary order allowing the media to have cameras and to write their blogs as planned.
She told the media that as of now, they could take notes in the courtroom and then move to the hallway and post their news and information to their Web sites as they see fit.
While a ‘stay’ is not realistic Meyer said, it would be the next request of the Appeals Court in Frankfort. A ‘stay’ in the case would delay the trial if granted; but with the need for a speedy trial in a criminal case, Meyer said it isn’t likely to be granted.
Appeal Filed For Media:ILB - It is now DAY FOUR of the trial.
Jill Meyer, attorney on behalf of several local media outlets including KyPost.com, WCPO.com and 9News, has officially filed her appeal to the appeal’s court regarding Campbell County Circuit Court Judge Julie Reinhardt Ward’s decision banning blogging and cameras in the courtroom during the McCafferty trial.
As soon as we have word of a hearing scheduled or a new decision, we will let you know on KyPost.com and WCPO.com.
Here is a copy of the 10-page motion and memo filed Feb. 23 by the media with the trial judge.
Here is the 54-page Motion for Emergency Expedited Hearing and Intermediate Relief and related documents filed Feb. 24th by the media with the Kentucky Court of Appeals.
Ind. Courts - "Monroe to launch new truancy court"
A brief item today by Bob Zaltsberg of the Bloomginton Herald-Times:
Monroe County will announce Friday that it has launched a new truancy court. Juvenile Judge Steve Galvin has been presiding over the pilot program since November; the Board of Judges will make a formal announcement about the new court on Friday.
The project is a cooperative effort involving the Board of Judges, Monroe County Prosecuting Attorney Chris Gaal, the Monroe County Community School Corp., the Richland-Bean Blossom School Corp. and the Monroe County Probation Department.
Ind. Decisions - Court of Appeals issues 6 today (and 21 NFP)
21 COA opinions yesterday, 27 today -- it must be the end of the month ....
For publication opinions today (6):
In T.R. Bulger, Inc., et al v. Indiana Insurance Company, a 12-page opinion, Judge Robb writes:
Indiana Insurance Co. (“Indiana”) filed the underlying declaratory judgment action requesting that the trial court determine whether the insurance policy it sold to T.R. Bulger, Inc. (“Bulger”) covers losses sustained by a homeowner as a result of Bulger's faulty installation of a heating, ventilation, and air conditioning (“HVAC”) system. The trial court granted summary judgment in favor of Indiana and Bulger appealed. For our review, Bulger raises three issues, which we consolidate and restate as: whether the trial court erred when it granted summary judgment in favor of Indiana. Concluding that no genuine issue of material fact exists with respect to the issue of agency but that a genuine issue of material fact exists that precludes summary judgment with respect to the issue of coverage, we affirm in part, reverse in part, and remand.In Kelly Daisy v. Brian D. Sharp, a 16-page, 2-1 opinion, Judge Najam writes:
Kelly Daisy (“Mother”) appeals from the trial court's order denying her petition to change the name of her minor daughter, M.S., to include Mother's surname. We address two issues on review: 1. Whether Mother waived for review the issue of whether Father established the presumption set out in the minor name change statute, Indiana Code Section 34-28-2-4(d). 2. Whether Father presented sufficient evidence to establish that statutory presumption. We reverse and remand. * * *In Brad Lawson v. Rodney Hale d/b/a R.H. Equipment, a 14-page opinion involving the sale of a tractor and the Indiana Deceptive Consumer Sales Act, IC 24-5-0.5-1 to 24-5-0.5-12, Judge Riley concludes:
In summary, we conclude that Mother has not waived review of whether Father established the presumption in Indiana Code Section 34-28-2-4(d). Father bore the burden of establishing the presumption if he wished to invoke it. Mother was not obligated to point out defects in Father's case at the hearing. And in her motion to correct error, Mother argued that the trial court had misapplied the name change statute. That argument was sufficient to avoid waiver of whether Father had established the presumption.
We also conclude that the evidence does not support the trial court's implied finding that Father had established the presumption in Indiana Code Section 34-28-2- 4(d). To invoke the presumption, the party opposing a minor's name change must show that he is paying support and fulfilling his parental duties as ordered by a dissolution, child support, custodial decree, or parenting time decree. Ind. Code § 34-28-2-4(d). * * * Reversed and remanded.
MAY, J., concurs.
ROBB, J., dissents with separate opinion. [which begins on p. 11]
Based on the foregoing, we conclude that the trial court did not err in entering judgment in favor of Hale on Lawson's claims for violation of the IDCSA and for breach of the implied warranty of merchantability. However, the trial court did err by entering judgment in favor of Hale on Lawson's claim for fraud. Therefore, as to that claim only, we reverse the trial court's judgment and remand this cause with instructions to enter judgment in favor of Lawson and to determine Lawson's damages. Affirmed in part, reversed in part, and remanded.In Kenneth Harrison v. State of Indiana , a 16-page opinion, Judge Crone writes:
Kenneth Harrison appeals his convictions for class A felony dealing in cocaine within 1000 feet of a public park and class B felony possession of cocaine within 1000 feet of a public park. We reverse in part, vacate in part, and remand with instructions. * * *In Gerald Young v. State of Indiana , a 5-page opinion, Judge Naam writes:
The State presented no evidence that any persons under the age of eighteen were present within 1000 feet of the University Park. Accordingly, we conclude that no reasonable fact-finder could find beyond a reasonable doubt either that Harrison was within 1000 feet of University Park more than briefly or that no persons under the age of eighteen were within 1000 feet of University Park. We therefore reverse Harrison's conviction for class A felony dealing in cocaine and remand with instructions to reduce the conviction to a class B felony and resentence him on this count. Based on the double jeopardy principles we discuss in the next section, we also remand to vacate Harrison's conviction for possession of cocaine, which would otherwise be reduced to a class D felony.
We next address sua sponte whether Harrison's conviction for possession of cocaine is barred by double jeopardy. See, e.g., Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008) (“We raise this issue sua sponte because a double jeopardy violation, if shown, implicates fundamental rights.”). Here, the same cocaine was used to support Harrison's dealing and possession convictions. The only cocaine introduced into evidence was the cocaine found in the baggies Harrison delivered to Officer McGivern. No other cocaine was found on Harrison's person or in the baggie he threw while attempting to resist arrest. Our supreme court has concluded that where the same cocaine supports both possession of cocaine pursuant to Indiana Code Section 35-48-4-6 and dealing in cocaine pursuant to Indiana Code Section 35-48-4-1, possession of cocaine is a lesser included offense of dealing in cocaine. * * * Thus, Harrison may not be convicted and sentenced on both the greater and lesser offenses. Accordingly, we vacate Harrison's conviction for possession of cocaine.
Gerald Young appeals his sentence following his conviction for Operating a Motor Vehicle While Intoxicated, as a Class D felony, and his adjudication as an Habitual Substance Offender. Young presents a single issue for our review, namely, whether the trial court erred when it imposed as a condition of probation that Young is prohibited from operating a motor vehicle. And we address another issue sua sponte, namely, whether Young’s sentence is illegal. * * *In Raphael L. Martin, Sr. v. State of Indiana , a 5-page opinion, Judge Brown concludes:
Here, because a Class D felony serves as the underlying offense for the habitual substance offender adjudication, the sentencing range for that felony is enhanced such that the new sentencing range is three and a half years to eleven years. * * * Because the trial court ordered that all but 240 days of Young’s sentence would be suspended, that sentence is illegal. We remand to the trial court with instructions to order that three and a half years of Young’s eight year sentence be executed and that the remainder of the sentence be suspended to probation. See id. at 751. Affirmed in part, reversed in part, and remanded with instructions.
However, as the State notes, under Ind. Post-Conviction Rule 1(1)(c), “if a petitioner applies for a writ of habeas corpus, in the court having jurisdiction of his person, attacking the validity of his conviction or sentence, that court shall under this Rule transfer the cause to the court where the petitioner was convicted or sentenced, and the latter court shall treat it as a petition for relief under this Rule.” Consequently, rather than simply denying Martin’s petition for writ of habeas corpus, the trial court should have transferred the cause to the court where Martin was convicted and sentenced. * * *NFP civil opinions today (4):
For the foregoing reasons, we reverse the trial court’s denial of Martin’s petition for writ of habeas corpus and remand with instructions to transfer the cause to the court where Martin was convicted and sentenced.
Yolanda M. Hollins v. Andrew R. Bell (NFP) - " Mother has not demonstrated that the trial court abused its discretion when it awarded Father physical custody of A.H. "
Gary Ray v. City of Indianapolis (NFP) - "Here, when it attacked Carroll’s dog, Ray’s dog was confined by a fence on Ray’s property. Although Ray’s dog was able to put its snout through a gap in the fence, we cannot say that, based on the evidence produced at trial, Ray’s dog was at a location other than Ray’s property when it bit Carroll’s dog. Accordingly, we conclude that the City failed to present evidence of a probative value from which a reasonable trier of fact could have found that Ray violated Section 531-102(c)(1). * * * Ray has made a prima facie case of error, and we therefore reverse the trial court’s judgment. "
Charles E. Perkins v. Michael Mitcheff, M.D., and Karla Foster (NFP) - "Perkins‟ complaint was not filed timely. Accordingly, the trial court did not err in granting Dr. Mitcheff‟s motion for summary judgment. "
Sentinel Alarm Systems, Inc. v. Erney's Lock & Key (NFP) - "In this small claims proceeding involving a debt for services rendered, Sentinel Alarm appeals a judgment against it and in favor of Erney’s Lock & Key in the amount of $1,590 plus costs. On appeal, Sentinel raises one issue, which we expand and restate as 1) whether the statute of frauds barred Erney’s small claims action and, if not, 2) whether the small claims court’s judgment in favor of Erney’s is clearly erroneous. Concluding that Erney’s action was equitable in nature and therefore not subject to the statute of frauds and that the small claims court’s decision to afford Erney’s equitable relief was not clearly erroneous, we affirm. "
NFP criminal opinions today (17):
Ind. Courts - Training on new loan modification programs
"An Update on Foreclosure Prevention through Loss Mitigation and Loan Modifications," sponsored by Indiana Legal Services, Inc. the Indiana Supreme Court, and the Legal Aid Society of Southwest Ohio and the National Consumer Law Center, with support from the Indiana Housing & Community Development Authority and the Institute for Foreclosure Legal Assistance, will take place March 6th. More from the notice:
This 6.5 hour CLE (and CEU for housing counselors) will help you understand and leverage new loan modification programs driven by the current mortgage crisis. Topics include the prevalence of modifications in the current environment, new crisis driven workout programs, the mechanics of arranging a workout, working with servicers, tax consequences, credit repair, and working through a loan modification case study. Attorneys and housing counselors seeking to prevent foreclosures are the primary audience.Cost for attorneys is $50.
A press release from the Supreme Court today begins:
Indiana attorneys will be trained to join the fight to help stem the mortgage crisis through pro bono representation. Chief Justice Randall T. Shepard recently announced a plan to train more judges and lawyers than any other state on how to deal with foreclosure cases. The massive training effort begins March 6th with a special education session dedicated to mortgage foreclosure issues that the Indiana Supreme Court is co-sponsoring along with Indiana Legal Services, Inc. and the Legal Aid Society of Southwest Ohio. At this training, and at others, the Indiana Supreme Court will offer scholarships to private attorneys who complete the training and agree to handle one mortgage foreclosure case on a pro bono basis.
The goal is to train hundreds of attorneys and judges across the state on how to help families in jeopardy of losing their homes. The program includes an effort to provide free legal help to homeowners in need of assistance. Chief Justice Shepard explained, “It makes sense that a person who is facing a financial burden so severe that they may lose their home cannot afford to hire an attorney to review their foreclosure case. That is why we are recruiting volunteer attorneys to help people who are in need of assistance.”
Ind. Courts - Settlement avoids judicial mandate action in Hammond
Susan Brown has this report today in the NWI Times:
HAMMOND | City Court Judge Jeffrey Harkin and the City Council have reached a settlement of the lawsuit filed by Harkin over the council's cuts to the court's 2009 budget.
Details of the settlement won't be revealed until Friday by mutual consent, according to Harkin's attorney, David Weigle, of Hammond.
At the beginning of court proceedings at 9:30 a.m. Wednesday, Lake Superior Court Judge Jeffrey Dwyan, citing concerns related to the open door issues given the public role of the council and the court, encouraged both parties to continue to try to reach agreement among themselves. A settlement was reached around 2:30 p.m.
Had the case reached a hearing before the judge, Harkin would have sought the court's approval of a judicial mandate to fund the court. According to Weigle, the Indiana Supreme Court has ruled city court judges, unlike Superior or Circuit Court judges, must seek a higher court's approval to impose a judicial mandate.
Harkin's suit contended the judge had sought a meeting with the council three days after the council's cutbacks to his budget, which resulted in the loss of four positions, including two public defenders. The public defender services were replaced by $30,000 in contractual services. The cutbacks also cost the court the services of one court referee and two deputy clerks.
The lawsuit had asked the court to order the council to fully fund Harkin's budget as it was requested, reinstate the deputy clerks and cover the court's legal expenses.
Ind. Courts - "What happens when a judge dies?" [Updated]
ANDERSON — While family, friends and colleagues mourn the loss of Judge David Hopper, the business of law and order continues in Madison County courtrooms.[Updated] See also this story from the Bulletin, headed "Drug Court part of Hopper’s legacy."
“I met with Judge Hopper’s staff at 8 o’clock this morning and they were all troopers,” said Superior Court 1 Judge Dennis Carroll. “They know they have business to carry on. They’re grieving with one side of their brain and doing their jobs with the other side.”
At the risk of sounding insensitive, many in Madison County are wondering: What happens when a judge dies?
Basically, Carroll said, the Indiana Chief Justice Randall Shepard will appoint a temporary replacement until Gov. Mitch Daniels names a permanent replacement.
“The (Indiana) Supreme Court will issue an order naming a judge pro-tem for a continuing basis,” Carroll said. “That’s what always happens if you have a judge die in office. You get somebody to step in immediately and manage the docket until the governor, who has ultimate responsibility, can name a replacement.”
Carroll said judges are elected on the county level, but are actually part of the state judiciary, making their appointment the governor’s responsibility. He said retired judges are often tapped for temporary judgeships and mentioned the recent retirement of Superior Court 2 Judge Jack Brinkman.
“It’s premature to speculate about that, but he will probably allow interested parties to make themselves known,” Carroll said. “There could be an interview process, but naming a successor could take a month or two.”
Immediately, Carroll said, local attorney Geoff Yelton has been tapped to handle the cases on Hopper’s docket. Jury selection was set to begin Thursday on a case in his court, but the trial has been canceled for now. Superior Court 3 Judge Thomas Newman will preside over drug court on Thursday.
Carroll will assume Hopper’s role as chief judge, a rotating assignment that puts the judge in charge of ancillary services of the courts system. Carroll served as chief judge in 2008 and the assignment reverts back to him because the judgeship became vacant before June 1. Had it become vacant after June 1, the chief judge assignment would fall to the 2010 chief judge.
Ind. Gov't. - State of Indiana employee salaries
The Indianapolis Star has updated its database of State of Indiana salaries to cover 2008.
Under Ivy Tech, for example, you will find House Speaker Pat Bauer, $118,450 and former President Pro Tem, $122,000, as well as Craig Fry, $114,490. Fry is also listed as Indiana General Assembly, $41,954, and Patrick Bauer as Indiana General Assembly, $46,216.
Wednesday, February 25, 2009
Law - Dawn Johnsen questioned by Senate committee [Updated]
The confirmation hearing for Indiana University law professor Dawn Johnsen was today.
The Blog of LegalTimes has this report today - some quotes:
The nominee to lead the Office of Legal Counsel faced questions today about the same set of issues that occupied the office under the Bush administration: the legal limits of the executive branch in preventing terrorism.The Washington Independent had several stories during the day.
Senators asked Dawn Johnsen (above), a law professor at Indiana University at Bloomington, to explain her views on detaining potentially dangerous combatants, on interrogation techniques, and on the confidentiality of OLC opinions related to national security. She has been a vocal critic of the office's work during the last eight years.
Here are earlier ILB entries on Professor Johnsen.
[Updated 2/26/08] See the article by Dahlia Lithwick of Slate, headed 'Thou Shalt Not Blog: Obama's OLC Nominee discovers the perils of "blogging, advocating, and speeching.'" It concludes:
But for those of us who have become accustomed in the past weeks to being grateful for half a loaf, Johnsen offers up three-quarters. She says torture is illegal and water-boarding is torture. She clarifies that the president may not order torture if duly enacted laws prohibit him from doing so. She opposes presidential abuse of signing statements. She says the OLC should have a preference for transparency. She pledges not to halt or interfere with the release of the impending Office of Professional Responsibility report about the competence of previous OLC opinions. And When Sen. Whitehouse describes the previous administration's OLC as "Dick Cheney's Little Shop of Legal Horrors," she cracks a grin."Justice Dept. Nominee Avoids Confrontation at Hearing" is the headline of this story today by Neil A. Lewis of the NY Times.
Courts - More on: Some Legal Experts Propose Limiting SCOTUS Justices' Powers, Terms
Updating this ILB entry from Feb. 23rd, NPR's Talk of the Nation today featured the four proposals for the judiciary.
Ind. Law - Several bills mentioned by ILB pass first house
Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)
For publication opinions today (4):
In William Lee Pallett v. State of Indiana , a 7-page opinion, Judge May writes:
Pallett asserts: (1) the Department of Correction “turned him over” to the Monroe County Jail, thus discharging his life sentence; and (2) because he was discharged from the Monroe County Jail in January 2003, there was no parole to revoke in October 2003. * * *Jimmie C. Smith v. Champion Trucking Co. Inc. - "Jimmie C. Smith (“Smith”) appeals the dismissal of his Application for Adjustment of Claim with the Indiana Worker’s Compensation Board (“Board”). We reverse and remand.
The Parole Board did not use the term “turn over” in Pallett‟s case and did not evidence any intent to discharge him from his life sentence. * * *
Because Pallett was not “turned over,” he was on parole from his life sentence while he was serving his sentence in Monroe County, and he was continuously on parole from the time he was handed over to the Monroe County Sheriff until his parole was revoked. * * *
Relying on Metcalf, Pallett argues he was “turned over” and discharged because the Parole Board did not use language specifically preserving his life sentence. * * *
Relying on the exhibits Pallett attached to his petition, the Parole Board demonstrated that it did not use “turn over” language and did not otherwise indicate Pallett was discharged from his life sentence. Pallett designated no evidence to the contrary. Therefore, the trial court did not err by granting summary judgment. Affirmed.
"The sole issue presented is whether Smith’s worker’s compensation application was properly dismissed pursuant to the subrogation portion of the Indiana Worker’s Compensation Act (“the Act”), Indiana Code Section 22-3-2-13, after Smith settled his claim against a third-party tortfeasor."
Gloria Benefield v. State of Indiana - "Appellant/Defendant Gloria Benefield appeals following her conviction for Class C felony Forgery. Benefield contends that the State failed to produce sufficient evidence to sustain her conviction, that the trial court abused its discretion in instructing the jury, that the trial court abused its discretion in sentencing her, and that her sentence is inappropriate in light of the nature of her offense and her character. We affirm. "
In E. Lee Warren, et al v. IOOF Cemetery, et al, an 8-page opinion, Judge Bailey writes:
Four of the surviving children of Sherman Warren (“Sherman”) and Isabella Warren (“Isabella”), E. Lee Warren, Lilly Frayer, Ester Hensley, and Arlie Warren (“the Warren Plaintiffs”) brought an action challenging a 2005 disinterment of Sherman’s remains, naming as defendants their siblings Betty Jo Ball, Mae Wilson, Mary Collins, Martha Brewer, Lizzie Hartig, Mat Warren, and Julie Schoff, IOOF Cemetery, David C. Van Gilder, as guardian of Isabella, and the Indiana State Department of Health (collectively, “the Warren Defendants”). The defendants were granted summary judgment. We affirm.NFP civil opinions today (4):
The Warren Plaintiffs state six issues for review, which we consolidate and restate as a single issue: whether summary judgment was properly granted to the Warren Defendants.
Sherman died in 1970 and was buried in a cemetery in Barbourville, Kentucky, where Isabella also planned to be buried. Isabella moved in with their youngest daughter and lived with her until the daughter died and was buried in IOOF Cemetery in New Haven, Indiana. In May of 2005, pursuant to the grant of a Kentucky disinterment permit, Sherman’s remains were disinterred and moved to IOOF Cemetery.
On March 8, 2006, the Warren Plaintiffs filed their “Complaint for Declaratory Judgment and to Set Aside Authorization for Disinterment of Remains of Sherman Warren” in the Allen Superior Court. The Warren Plaintiffs alleged that Isabella suffered from advanced Alzheimer’s and that her authorization for disinterment was wrongfully procured. * * *
Isabella died on October 17, 2007, and was buried next to Sherman and their daughter in Indiana. The Warren Defendants moved for summary judgment, which was granted. The Warren Plaintiffs appeal. * * *
Indiana Code Section 23-14-57-1 specifies persons having authority to consent to disinterment, including surviving adult children. However, a person specified in the disinterment statute does not have an absolute right to disinter remains as a matter of law, and rights of others who oppose disinterment may be considered. * * *
Here, the parties have disputed whether Isabella was able to freely and carefully consider the propriety of moving Sherman’s remains from Kentucky in 2005. They do not, however, contest any fact relative to the present circumstances of interment. We assume, consistent with the Warren Plaintiffs’ factual contentions, Isabella suffered from Alzheimer’s during her later years and may not have been fully aware of the implications of some actions or decisions. Nevertheless, Isabella consistently expressed her desire to be buried beside her husband.
Sherman and Isabella are buried beside each other in a public cemetery. One particular location cannot be equally accessible to each of the eleven surviving children as they now live in diverse locations. However, there is no indication that any surviving child would be hampered in his or her efforts to visit the gravesites. The trial court found “no justification” for disinterment. We agree that the summary judgment record does not reveal any compelling reason to disinter the remains of two individuals, one of whom died over thirty-eight years ago. The trial court’s exercise of its discretion was not contrary to the facts and circumstances before it. Affirmed.
Troy Faulkenburg v. Gerald Austin Nance (NFP) - "Troy Faulkenburg appeals the trial court’s judgment awarding damages to Gerald Nance for conversion of Nance’s propane gas tank and timber, unpaid rent, damage to
Nance’s real estate, and Nance’s attorney fees and travel expenses. Faulkenburg argues the trial court erred by denying his counterclaim and the evidence does not support the award of damages to Nance. We affirm. "
Techcom, et al v. Telematrix (NFP), a 24-page opinion. "In this appeal, Mantyla, Louden, and Techcom appeal a judgment in favor of Telematrix for money damages after the latter prevailed on the theories of breach of fiduciary duty and tortious interference with a business relationship with Cummins. The Appellants present the following consolidated and restated issues for review:
1. Did the trial court commit clear error in determining that Louden breached his fiduciary duties to Telematrix?
2. Did the trial court commit clear error in concluding that Mantyla and Techcom tortiously interfered with Telematrix‟s business relationship with Cummins?
3. Did the trial court err in awarding $152,577.17 in damages to Telematrix?
Brian Magill and Magill Builders, LLC v. Justin and Amanda Lutz (NFP) - "In sum, the trial court erred in requiring a written work order to modify the contract. In contrast to the trial court’s conclusion, the parties modified the contract to include a larger laundry room for fifteen hundred dollars. On remand, we direct the trial court to enter the appropriate finding and recalculate the breach of contract damages accordingly. Despite this modification, the evidence supports the conclusion that Magill’s actions constituted an anticipatory breach of the contract. Furthermore, the trial court was correct in refusing to award damages to Magill and determining that Brian and the LLC committed fraud. "
NFP criminal opinions today (13):
Ind. Courts - "Longtime Madison County Judge David W. Hopper is dead after an apparent heart attack late Tuesday night"
From the Anderson Herald Bulletin, this story:
ANDERSON — Longtime Madison County Judge David W. Hopper is dead after an apparent heart attack late Tuesday night. He was 60.
Doug Long, an local lawyer and Hopper’s brother-in-law, said Hopper suffered a “massive heart attack” some time around midnight at his home in Anderson. He said Hopper was in excellent health and his death comes as a shock to the family. * * *
Madison County Commissioner Paul Wilson, D-South District, said the flag at the Madison County Government Center had already been lowered.
“He had a long service with this county that should be honored as we intend to,” Wilson said.
Wilson said Hopper was the chief judge of Madison County’s unified court system, meaning he had administrative duties related to every court, and the responsibility of the chief judge will revert back to Judge Dennis Carroll.
Courts - Yet another update on efforts to receive compensation for land taken to build Kentucky Camp Breckenridge
This April 20, 2008 ILB entry reported success for Kentucky families' "long legal fight to get compensation for land taken from their families by the federal government to make way for a World War II training camp." It quoted an Evansville Courier & Press story that began:
LOUISVILLE, Ky. — A federal judge has recommended a $34.3 million award to a group of former landowners in Western Kentucky whose property was taken to create a World War II-era military training post.But according to an AP story by Brett Barrouquere, today a 3-judge panel of the U.S. Court of Claims dismissed that recommendation. From the story:
Judge Susan Braden of the U.S. Court of Federal Claims in Washington, D.C., recommended that Congress appropriate at least $34,303,980.42 in restitution for land and mineral rights lost by the landowners when the government appropriated their land to create Camp Breckinridge.
Braden issued a 53-page ruling late Friday, saying the amount represents only 27 percent of the $127 million benefit the government received from taking the land and mineral rights.
Former western Kentucky landowners and their families are not entitled to compensation for property taken by the U.S. government to build a military camp at the start of World War II, a federal court said in 2-1 ruling Wednesday, ending a 15-year legal battle in the case. * * *
Wednesday's ruling dismisses a recommendation by another judge on the court that the former landowners receive at least $32 million.
Judges Lawrence S. Margolis and Loren A. Smith wrote a 20-page decision that "any award to the Claimants would constitute a gratuity" and recommended Congress be advised that they should receive nothing. * * * *
Judge Charles Lettow dissented in a 41-page opinion, saying he would recommend at least a $22 million award to any landowner or heir who did not pursue a legal claim at the time the property was taken.
"The former landowners assiduously pursued their claims through petitions to executive departmental officials, litigation and petitions to Congress," Lettow wrote. * * *
The federal government declared Camp Breckinridge land surplus in 1962 and sold off the mineral rights and surface land, over the objections of the former landowners.
Ind. Courts - Two stories today in continuing, and confusing, Delaware County saga
Rick Yencer of the Muncie Star-Press reports here under the heading "McKinney asks appeals court to stop possible citation." The story begins:
Delaware County Prosecutor Mark McKinney and a deputy on his staff are asking the Indiana Court of Appeals to stop possible contempt citations over their failure to return attorney fees and cash from civil drug forfeiture cases.A second Yencer story today, headed "Contempt citation wouldn't force McKinney from office," reports:
The latest bid by McKinney and Deputy Prosecutor Eric Hoffman to avoid paying a combined judgment of $232,112 -- awarded to local government by Delaware Circuit Court 2 Judge Richard Dailey -- also seeks to derail efforts by the city of Muncie to enforce Dailey's order.
Attorneys Kevin McGoff, representing McKinney, and Kelly Bryan, representing Hoffman, asked the appeals court to strike the city's motion and stay any trial court action and to set a hearing or pre-trial conference before a contempt hearing set for Friday in Dailey's court.
"It is further requested ... that the trial court be specifically stayed from taking any further action whatsoever in connections with the underlying matter or matters pending final resolution of the appeal in this case," the motion read.
Should Delaware Circuit Court 2 Judge Richard Dailey find Mark McKinney in contempt of court and send the Delaware County prosecutor to jail, it would not make McKinney ineligible to remain in office, a state court official said Tuesday.
Dailey has scheduled a Friday hearing on a request by city attorneys that McKinney and Deputy Prosecutor Eric Hoffman be held in contempt for not paying a judgment of more than $230,000 in legal fees and cash from civil drug forfeitures.
Donald Lundberg, executive secretary for the Indiana Supreme Court's disciplinary commission, said Tuesday that a trial court's finding of contempt would not prevent a prosecutor from holding office.
"It would require a loss or suspension of law license, something that only the Supreme Court can do (under the Constitution) to cause the prosecutor to be disqualified to act in office," Lundberg said.
Lundberg declined to comment on whether a contempt finding would trigger disciplinary commission involvement.
Ind. Courts - S0uth Bend Tribune editorial opines on judicial mandates
For background, see these earlier ILB entries titled "St. Joseph County Probate Judge to issue pay raises despite council's objections."
From today's South Bend Tribune, this editorial, headed "Judge holds winning hand."
The St. Joseph County Council and the Board of Commissioners should drop their resistance to St. Joseph Probate Judge Peter Nemeth's judicial order that pay raises for his employees be reinstated in his budget for the Juvenile Justice Center. There are two good reasons:
First, Nemeth can justify the raises, even in these budget-cutting times. And second, state law permits the judge to mandate needed expenditures.
If the council and commissioners appeal Nemeth's order, they very likely will lose, but not before they have spent thousands in taxpayer money on court and attorney fees.
Nemeth has made his case that court and JJC staff have been substantially underpaid in comparison to their counterparts in other courts. Those whose pay levels are covered by state statute have received raises.
As the judge also has noted, the money for the raises wouldn't come from property tax funds. It would come from the County Juvenile Probation Services Fund. Although Nemeth must seek the approval of the council and commissioners to spend the money, the council and commissioners don't really have the power to deny his request if the judge determines the expenditures to be necessary for the operation of the juvenile justice system.
Similarly, Nemeth must seek the council and commissioners' approval to move money from one fund to another — money left over from a previously budgeted purpose. That is the subject of a second order of mandate he filed Feb. 4.
Nemeth wants to redirect some unspent money — about $400,000 — to remodel and furnish a portion of the JJC in order to make better use of it. Although the council unanimously approved the request, purchase requisitions totaling nearly $314,000 were denied by Commissioner Robert Kovach, D-2nd. Nemeth's mandate overrules Kovach's denial.
We hope the county council and commissioners aren't seriously considering spending taxpayer money to appeal this one, either. Again, they likely would lose.
Which brings us to the final order of mandate Nemeth presented to the council and commissioners on Feb. 4. They may not, he has declared, sell land behind the JJC. Ivy Tech Community College has expressed interest in it.
We don't know whether county officials have the authority to sell the land east of the JJC or not. It is Nemeth's opinion that doing so would violate the original bond issue, secured to provide a juvenile detention center.
The fact is, Nemeth has plans for that land — possibly building youth residences there one day. Ivy Tech needs room for expansion, too, but the community college would have more expansion options than the JJC. We agree with Nemeth that, if there is a related future need for the land, then it ought to stay part of the juvenile detention property.
If what really is troubling the commissioners is the larger issue — Nemeth's mandate power and the fact that he does not defer to them on the use of money that he can control — then they need to be talking to the Indiana General Assembly. That is where the code that is the basis of Nemeth's authority was written. In the meantime, they should fold on these three issues.
Law - "Citing Cost, States Consider End to Death Penalty"
That is the headline to this lengthy NY Times story today by Ian Urbina. Some quotes:
When Gov. Martin O’Malley appeared before the Maryland Senate last week, he made an unconventional argument that is becoming increasingly popular in cash-strapped states: abolish the death penalty to cut costs.The Times has this graphic on the cost of capital cases.
Mr. O’Malley, a Democrat and a Roman Catholic who has cited religious opposition to the death penalty in the past, is now arguing that capital cases cost three times as much as homicide cases where the death penalty is not sought. “And we can’t afford that,” he said, “when there are better and cheaper ways to reduce crime.”
Lawmakers in Colorado, Kansas, Nebraska and New Hampshire have made the same argument in recent months as they push bills seeking to repeal the death penalty, and experts say such bills have a good chance of passing in Maryland, Montana and New Mexico. * * *
Capital cases are expensive because the trials tend to take longer, they typically require more lawyers and more costly expert witnesses, and they are far more likely to lead to multiple appeals.
In New Mexico, lawmakers who support the repeal bill have pointed out that despite the added expense, most defendants end up with life sentences anyway.
That has been true in Maryland. A 2008 study by the Urban Institute, a nonpartisan public policy group, found that in the 20 years after the state reinstated the death penalty in 1978, prosecutors sought the death penalty in 162 felony-homicide convictions, securing it in 56 cases, most of which were overturned; the rest of the convictions led to prison sentences.
Since 1978, five people have been executed in Maryland, and five inmates are on death row.
Opponents of repealing capital punishment say such measures are short-sighted and will result in more crime and greater costs to states down the road. At a time when police departments are being scaled down to save money, the role of the death penalty in deterring certain crimes is more important than ever, they say. * * *
States are looking elsewhere as well.
Last year, in an effort to cut costs, probation and parole agencies in Arizona, Kentucky, Mississippi, New Jersey and Vermont reduced or dropped prison time for thousands of offenders who violated conditions of their release. In some states, probation and parole violators account for up to two-thirds of prison admissions each year; typical violations are failing drug tests or missing meetings with parole officers. * * *
As prison crowding has become acute, lawsuits have followed in states like California, and politicians find themselves having to choose among politically unattractive options: spend scarce tax dollars on expanding prisons, loosen laws to stem the flow of incarcerations, or release some nonviolent offenders.
The costs of death penalty cases can be extraordinarily high.
The Urban Institute study of Maryland concluded that because of appeals, it cost as much as $1.9 million more for a state prosecutor to put someone on death row than it did to put a person in prison. A case that resulted in a death sentence cost $3 million, the study found, compared with less than $1.1 million for a case in which the death penalty was not sought.
The ILB has had several earlier entries on the costs of death penalty cases. They have mainly focused, however, on the costs of trial and retrial at the local level. The Muncie Star-Press had a long story on Sept. 28, 2008 (ILB entry here) on "the role that a county's financial status plays in whether a local prosecutor pursues a death sentence." Unfortunately the story itself is no longer available.
This ILB entry from Feb. 17, 2008, headed "Wilkes trial costs adding up," also has links to entries about the Rios and Camm trials.
This ILB entry from Nov. 5, 2006, looks at Indiana's death penalty legal costs at the appellate level.
Tuesday, February 24, 2009
Ind. Law - Strengthened public records law passes Senate
Eric Bradner and Bryan Corbin of the Evansville C&P update us on that and some other bills here this afternoon.
Courts - Justice Ruth Bader Ginsburg does not return quietly
Many stories today about the return of Supreme Court Justice Ruth Bader Ginsburg (aka "the only woman justice") to the bench yesterday.
"Justice Ginsburg Returns to Work: Less Than 3 Weeks After Cancer Surgery, She Is an Active Participant on the Bench" is the headline to the Washington Post story by Robert Barnes.
"On Return to Court, Ginsburg Is Quick to Question," is the heading to the Adam Liptak report in the NY Times.
"Ginsburg returns to high court after surgery" is the headline to Joan Biskupic's story in USA Today.
Ind. Courts - Muncie mayoral election dispute set for oral argument
The Muncie mayoral election dispute has been set for oral argument by the Court of Appeals, sua sponte, for April 14 at 5 pm at Purdue University. The case is Mansfield v. McShurley. The briefs are available here. Here is a list of earlier ILB entries.
Law - "New Rule Enacted by Bush Administration Impedes Cases Against Nursing Homes"
Cindy Skrzycki, business columnist for the Washington Post, reports today in her column, "The Regulators," that:
The Bush administration shut off a source of information last fall about abuse and neglect in long-term care facilities that people suing nursing homes consider crucial to their cases.
The change, which affects the $144 billion nursing-home industry, was enacted with no public notice or attention.
"This is pretty stunning," said Mark Kosieradzki, a plaintiff attorney in Plymouth, Minn. "Nobody was told. It was just done."
The rule designates state inspectors and Medicare and Medicaid contractors as federal employees, a group usually shielded from providing evidence for either side in private litigation.
The restrictions affect about 16,000 nursing facilities and 3 million residents in the United States. The practical effect is to force litigants to go to greater lengths, including seeking court orders, to get inspection reports or depositions for cases they are pursuing or defending. * * *
The effect of the directives has started to play out in the nation's courtrooms. Requests for information, once fairly routine, now are stalled between state and federal officials.
Anne Marie Regan, an attorney with the Kentucky Equal Justice Center, a nonprofit poverty legal advocacy and research center, said the change has slowed a case she is pursuing on behalf of an 85-year-old man who was evicted from a nursing home in 2007.
Priscilla Shoemaker, legal counsel for the American Health Care Association in Washington, said nursing homes "are in the same boat" because they also have difficulty getting information on how state inspectors determine penalties, citations and orders to shut down homes.
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
In Charles Dwayne Gilliam v. State of Indiana , an 11-page opinion, Judge Darden writes:
[Gilliam argues] that his non-support of his eight dependent children constituted a single episode of criminal conduct. We cannot agree. * * *In Michael W. George v. State of Indiana , a 13-page opinion, Judge Robb writes:
Gilliam appears to confuse the notion of a “continuous” obligation to pay child support with the concept of multiple events constituting a “single episode of conduct.” Boss, 702 N.E.2d at 784; Williams, 891 N.E.2d at 624. The facts herein reveal that when Gilliam failed, during the applicable periods between January 1, 2001, and December 31, 2004, to pay court-ordered child support, three separate and distinct households (with different sets of victims) were deprived of support for dependent children. * * *
Based upon the foregoing facts, Gilliam has not demonstrated that his offenses constituted a single episode of criminal conduct. Thus, we conclude that the trial court did not err in imposing consecutive sentences. * * *
In our view, Gilliam has failed to advance any discernible argument regarding the nature of his non-support of dependent children offenses or his character. Thus, we find that he has failed to present a cogent argument in support of this claim and has, therefore, waived the issue. See Ind. App. Rule 46(A)(8)(a).
Gilliam argues that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). * * *
Gilliam's failure to provide child support for his eight dependent children with three different women and his extensive criminal history reflects strongly upon his character which shows disrespect for the law and/or an unwillingness to conform his behavior to socially-acceptable norms. After considering the nature of the offenses and the character of the offender, we cannot say that Gilliam's sentence is inappropriate.
Following a bench trial, Michael George appeals his conviction of possession of a controlled substance, a Class D felony. On appeal, George raises one issue, which we restate as whether the trial court properly concluded that the seizure of morphine tablets during a warrantless search of George's vehicle did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution. Concluding the trial court properly concluded the search did not violate either constitutional provision, we affirm. * * *In Thomas Allen House v. State of Indiana - "Thomas Allen House appeals the order revoking his suspended sentence. We affirm in part, reverse in part, and remand. Issue: Whether the trial court erred by not awarding credit time."
The State concedes Deputy Chandler‟s inventorying of the vehicle was a search and that it was conducted without a warrant. As such, Deputy Chandler‟s search was per se unreasonable, and the State bore the burden of convincing the trial court that the search fell within one of the well-delineated exceptions to the warrant requirement. * * *
The inventory search of George‟s vehicle did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution, and the trial court therefore properly admitted the items seized from the inventory search into evidence. Affirmed.
NFP civil opinions today (5):
Michael D. Baker v. Jerry Lehman (NFP) - "We agree with Baker that even if he was indebted to RNIC for the commissions on the cancelled policies, the fact that Lehman was also liable renders equitable subrogation inapplicable here. * * * We are unaware of any other theory under which Lehman is entitled to recover from Baker. Consequently, we reverse the trial court's judgment in Lehman's favor.
Christal Chandler v. Hardigg Industries (NFP) - "Following a bench trial, Michael George appeals his conviction of possession of a controlled substance, a Class D felony. On appeal, George raises one issue, which we restate as whether the trial court properly concluded that the seizure of morphine tablets during a warrantless search of George's vehicle did not violate the Fourth Amendment of the United States Constitution or Article I, Section 11, of the Indiana Constitution. Concluding the trial court properly concluded the search did not violate either constitutional provision, we affirm."
Aaron S. Bowland and Christina Bowland v. Ryobi Die Casting (USA), Inc. (NFP) - This is a 27-page opinion that concludes:
Based upon the foregoing, we conclude that Ryobi successfully negated the “duty element” of the Bowlands‟ negligence claim. The trial court correctly granted summary judgment in Ryobi‟s favor. See Howard, 879 N.E.2d at 1122 (“To prevail on a motion for summary judgment in a negligence case, the defendant must establish that the undisputed material facts negate at least one element of the plaintiff‟s claim or that the claim is barred by an affirmative defense.”). Affirmed.In the Matter of the Term. of Parent-Child Rel. of N.W., et al.; S.P. v. Dept. of Child Svcs. (NFP)
NFP criminal opinions today (2):
Environment - "Yet One More Bush EPA Air Rule Goes Down"
Interesting post by Jonathan Adler of The Volokh Conspriacy, that includes this statement:
[I]t is remarkable how poorly the Bush Administration's air pollution regulations have fared in federal court, even before the relatively conservative D.C. Circuit.
Ind. Gov. - Still more on: "Who Are These People?"
The opportunity to rescue Indiana's taxpayers and people in need from the antiquated and dysfunctional township government system appears to have been missed again this year.Here are links to the Star's two (so far), not-to-be-missed reports:
The trustees themselves can hardly take credit for their escape. If the latest measures of their performance were to make their appropriate impression on the Indiana General Assembly, reform of a 19th-century relic would be well under way.
Sunday, The Star published a second installment of results from an investigation into inconsistency, inefficiency and lack of accountability on the part of the townships. The sampling of 224 of the 1,008 local units found overhead far in excess of other governmental bodies, widespread failure to report eligibility guidelines and expenditures for poor relief, and practices so freewheeling that a needy person's chances for getting assistance vary by what block he lives on.
Sunday's story followed a revelation by The Star on Feb. 11 that the state's townships were sitting on more than $200 million in cash reserves at a time of rising unemployment and poverty, when private food pantries could not meet demand. And the hoarders continued to tax the citizenry at the maximum rate.
So much for the personal touch the trustees tout in defense of their fiefdoms. While it's true smaller can be better, the facts and figures in this case make clear that consolidation of poor relief and other trustee functions under a visible executive or council in each county, using a uniform set of standards, can only do better by the people who need help and the people who pay.
Unfortunately, The Star's Feb. 11 report and other evidence failed to move state Senate committees sufficiently to keep the township elimination cause alive. Sunday's second punch (which won't be the last from The Star) came too late -- not that hard information would have trumped politics.
From Feb. 11th, this report by Mark Alesia, Tim Evans, Heather Gillers and Mark Nichols, headed "Indiana townships have $200 million of taxpayer money in reserve: Review shows reserves typically exceed annual budgets."
And from Sunday, Feb. 22nd, this second report from the same team, headed "Indiana townships do a poor job of poor relief: Township aid often determined by location rather than need."
Ind. Law - "House weighing satellite voting bill"
Recall last fall's Lake County "early voting" case, John B. Curley, et al v. Lake County Board of Elections and Registration, et al (see list of ILB entries here).
Today John Byrne of the Gary Post-Tribune reports:
Early satellite voting sites would be protected in Lake County's two biggest cities under a proposal under consideration in the Indiana House of Representatives.
Rep. Vernon Smith, D-Gary, wrote House Bill 1423 in response to the fierce partisan battle over early voting in Lake County in the run-up to the Nov. 4, 2008, general election.
The bill would require election boards in Lake and Marion counties to set up early satellite voting sites in cities with populations greater than 60,000.
In Lake County, the cities of Gary and Hammond have more than 60,000 residents. No Porter County municipalities meet the benchmark.
Currently, state law requires a unanimous vote of a county election board to create the satellite sites.
In fall 2008, a court fight over early voting in Lake County drew nationwide attention.
The Democratic majority on the Lake County Election Board voted to proceed with early voting in county clerk's offices in Gary, Hammond and East Chicago, despite the protests of Republican board members.
The Democrats argued the balloting was not considered "satellite voting" because it took place in the county clerk's offices. Six courts considered the case before the state Court of Appeals issued a final ruling that early voting at the clerk's offices should continue.
"I don't think it should be a political issue," Smith said of early voting. "It should be a way to reach out and get as many people as possible involved in the election process."
Smith's bill passed on second reading Monday. It is scheduled to face another vote in the House this week. If it succeeds, the proposal will move to the Senate for further consideration.
Ind. Courts - More on: "House overwhelmingly passes measure to elect jurists in St. Joe County"
Someone is taking a poll on whether local judges should be elected, serving up the latest volley in an intense game of rhetorical pingpong surrounding the issue.The lengthy article goes on to discuss the pros and cons of the proposed change to the selection process.
A bill that would move St. Joseph County Superior Court judges to nonpartisan elections is awaiting action in the Senate after passing the House earlier this month, 88 to 3.
It's not a new issue, but it's the first time such a measure — this one sponsored by state Rep. Craig Fry, D-Mishawaka — has made it this far.
Fry said he doesn't know who's conducting the poll. Other interest groups also denied involvement.
Ind. Courts - "Federal district judges sitting by designation with the U.S. Court of Appeals for the 7th Circuit"
Last evening Howard Bashman of How Appealing noted that Judge Kendall, of the Northern District of Illinois, was sitting by designation on a 7th Circuit opinion issued yesterday. This monring Bashman posts a response from Circuit Chief Judge Frank H. Easterbrook, who states in part:
I have invited the more recent appointees to the district court (those who have served five years or less) to sit with the court of appeals, so that they may get better acquainted with how the appellate process works in the Seventh Circuit. I also have urged judges of the court of appeals to sit occasionally on the district court. The judicial system as a whole is stronger when its members have experience with the process from beginning to end. Judicial knowledge and insight yield benefits for litigants. All of the circuit's district judges with five years or less or service have accepted and will sit with the Seventh Circuit for two days each before the end of May. Judge Kendall, who sat on January 20 and 22, is the first.
Ind. Law - "Senate gives 'green light' to red-light cameras"
Updating this ILB entry from Feb. 18th, Richard Gootee of the Indianapolis Star has a background story today on the red light camera issue. A bill passed the Senate last week. As noted in the ealier ILB entry, the bill is SB 389. SECTION 22 adds a new chapter IC 9-21-3.6, the "Traffic Infraction Detection System Program."
Today's Star story had a useful graphic on "How the Cameras Work." Unfortunately, the graphic is not available online.
Ind. Courts - "Retired judge will fill in: March 9 is Snow's last day on bench"
Updating this ILB entry from Feb. 10th headed "Governor will pick Judge Snow to lead Indiana Alcohol and Tobacco Commission," Bill Engle of the Richmond Paladium-Item reports today in a story that begins:
A retired judge who served on the bench in Dearborn County for 23 years will work the first two weeks as a replacement when Wayne Superior Court 1 Judge P. Thomas Snow steps down in March.
Snow, who is leaving Richmond to become chairman of the Indiana Alcohol and Tobacco Commission, said this week that March 9 will be his last day on the bench.
Retired Judge Michael Witte will work through March 23 as a replacement. Then the Indiana Supreme Court is likely to appoint an interim replacement for Snow until Gov. Mitch Daniels appoints a person to serve out the rest of Snow's term, which runs through Dec. 31, 2012.
"We will have coverage here and it will be quality coverage," Snow said Monday.
Monday, February 23, 2009
Ind. Decisions - More on: A question for ILB attorney-readers
I've received quite few thoughtful responses to the question I posed Friday about why you read NFP opinions, and your thoughts in general about NFPs. Several of your comments have suggested new avenues for thought. The window for commenting remains open ...
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In In the Matter of the Guardianship of R.M.M., a 7-page opinion, Judge Barnes writes:
[Appellant pro se] Joshua March appeals the trial court’s denial of his petition to modify his weekly child support obligation. We reverse and remand. * * *NFP civil opinions today (0):
On January 18, 2007, the trial court modified the child support order so that each biological parent was to pay $67 per week. The trial court found that March and Peankhamhor were “each imputed to have a weekly gross income of $210.”
March filed a pro-se petition to modify child support on August 17, 2007, arguing that the child support order was inconsistent with Indiana law, specifically Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007), issued on February 22, 2007. The trial court held a hearing on August 28, 2007, and took the matter under advisement. It did not issue an order until March 30, 2008, which denied March’s petition for modification. March filed a timely motion to correct error, which was denied on July 2, 2008. This appeal followed. * * *
March raises one issue, which we restate as whether the trial court abused its discretion by denying March’s petition to modify child support. * * *
In Lambert, our supreme court held that when determining support orders, “courts should not impute potential income to an imprisoned parent based on pre-incarceration wages or other employment-related income, but should rather calculate support based on the actual income and assets available to the parent.” Lambert v. Lambert, 861 N.E.2d 1176, 1177 (Ind. 2007). It was careful to emphasize, however, that incarceration does not relieve parents of their child support obligations. Id. Throughout its analysis, the supreme court was careful to distinguish Lambert’s situation where determination of an initial support order was being made with situations which involved determining whether incarceration justified the reduction of an existing support order. Id. at 1177. March is not attempting to reduce an existing child support order after being incarcerated; rather, he was incarcerated at the time of the calculation of the initial order, had his support increased while incarcerated, and he has been incarcerated throughout the entire course of this litigation.
March claims that the Lambert case mandates “an incarcerated parent’s income should not be imputed to minimum wage if the parent is not actually making a 40 hour minimum wage income.” App. p. 17. Our supreme court does not actually make such a specific statement in Lambert. * * * We acknowledge that our supreme court granted transfer of [Clark v. Clerk] on September 18, 2008, and we await an opinion regarding Lambert’s application to modifications of child support orders based upon changed circumstances of incarceration and the application of minimum wage as a floor to setting a child support obligation. * * *
The trial court was incorrect in denying March’s petition for modification. March presented evidence that he was earning approximately $6 per month, yet the trial court continued a $67 per week support order. The evidence before the court indicated that the previous child support obligation of $15 per week was more appropriate, especially considering the Lambert decision. March is not attempting to avoid his child support obligations and candidly admitted his willingness to pay a lesser amount.
Our supreme court noted in Lambert that “to the extent that an order fails to take into account the real financial capacity of a jailed parent, the system fails the child by making it statistically more likely that the child will be deprived of adequate support over the long term.” * * *
The trial court abused its discretion in denying March’s petition for child support modification. We reverse and remand.
NFP criminal opinions today (6):
Court - Supreme Court of United States returns today
A lot of news out of the SCOTUS today, returning from a winter recess. Scroll through the newest entries on SCOTUSBlog. And, good news, Justice Ginsburg was in her seat. See this report from the Blog of Legal Times' Tony Mauro.
Ind. Decisions - Transfer list for week ending Feb. 20, 2009
Here is the transfer list for the week ending Feb. 20, 2009. It is three pages long.
Three transfers were granted last week, in two cases; see details in this ILB entry from Feb. 19th.
Five years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Courts - Some Legal Experts Propose Limiting SCOTUS Justices' Powers, Terms
Robert Barnes reports today in the Washington Post:
If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?What are the proposals? Here is a summary from the WSJ Law Blog, but do read the entire Post article to get the full gist:
A group of prominent law professors and jurists thinks not, and the group says in a letter to congressional leaders that there is no reason Congress should consider the operation of the high court sacrosanct.
"We do not suggest, and would oppose, any interference with the substance of the court's work," says the letter, which was organized by Duke University law professor Paul D. Carrington and signed by 33 others from different stations on the political spectrum.
But the group said Congress has every right to address how the court operates, "a subject it appears not to have seriously considered for at least seventy years."
Carrington said the four proposals in the letter -- sent to the chairmen and ranking minority-party members of the congressional judiciary committees, Attorney General Eric H. Holder Jr., and Vice President Biden -- are drawn from various studies, commissions and reform efforts that have foundered in the past.
First, the group proposes a form of term limits, moving justices to senior status after 18 years on the court.
Second, the proposal would set up a regular rotation on the court by providing for the nomination of a new justice by the president with each new two-year term of Congress. If that results in more than the current nine justices, only the nine most junior would hear cases.
Third, proposal deals with the removal of justices in failing health “who are increasingly prone to remain in office and retain their political power even if no longer able to perform their office.”
Finally, the proposal would deprive the justices of one of their greatest powers: deciding which cases they hear. It envisions a “Certiorari Division” made up of senior justices and appellate judges who would review the petitions and send 80 to 100 each year for the Supreme Court to decide, whether it wanted to or not.
Environment - "Indiana ash ponds pollute bird habitat, drinking water: Situation prompts look at coal-waste storage standards"
That is the headline to this long story today by James Bruggers of the Louisville Courier Journal:
PRINCETON, Ind.— The ash ponds at the nation's third-largest coal plant near here have contaminated a new wildlife sanctuary for endangered birds and the drinking water of a neighboring community.
And while a federal agency and the company that owns the Gibson plant, Duke Energy, have taken steps to alleviate both problems, advocates say the situation underscores the need for a fresh look at the hazards of coal combustion waste. * * *
Currently, ash ponds can be constructed almost anywhere, with their regulation left to states — resulting in a hodge-podge of rules often allowing ponds with no engineered liners to protect water.
"We need a national regulation that gets rid of that practice," said Jeff Stant, Indiana-based director of the Environmental Integrity Project's effort to address coal combustion waste. "What happened at Gibson shows why."
The issue is especially important in Kentucky and Indiana. Nationally, power plants produce more than 125million tons of ash and other coal combustion wastes a year. Kentucky and Indiana ranked 1st and 3rd in production of such waste in a 2006 federal study.
Industry has for years fought federal rules for ash disposal, saying they aren't needed and would be too costly. * * *
The Gibson plant, about 120 miles west of Louisville in Gibson County, produces 3,000 megawatts of electricity — enough to power more than 2 million homes. It burns about 300 rail cars of coal a day, and produces about 1million tons of ash per year.
The plant was owned by Cinergy until it was bought in 2006 by Duke, which inherited its problems.
Ind. Law - This week at the General Assembly - Week 7
Bryan Corbin's weekly "Legislative Notebook" report appears today in the Evansville Courier & Press with this headline: "General Assembly faces full docket: Budget, smoking ban pass; immigration on tap." It begins:
Big decisions are ahead this week for the Indiana General Assembly as lawmakers plow through dozens of proposals dealing with health, business and taxes.Among the bills mentioned:
Indiana House members are facing deadlines to pass bills and send them to the state Senate, while senators are under a similar rush to finish bills and send them to the House.
Cancer treatment: Senate Bill 554, authored by Sen. Vaneta Becker, R-Evansville, would allow more low-income and uninsured Hoosiers to receive coverage through Medicaid for cervical and breast cancer treatments. Currently, low-income Hoosiers are eligible for Medicaid for screenings only if they are screened through a federal program administered by the State Department of Health, but 32 counties don't have participating screening facilities, Becker said. The bill, which would extend Medicaid coverage, passed 50-0 and moves to the House.This bill addresses the very serious loophole discussed in this Sept. 14, 2007 ILB entry.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court:
This Thursday, Feb. 26th:
9:00 AM - James Kohlmeyer v. Second Injury Fund - The Worker's Compensation Board denied Kohlmeyer's application for compensation from the Second Injury Fund. The Court of Appeals affirmed, holding the threshold amount of benefits required to reach the Second Injury Fund must be met by considering only Worker's Compensation benefits, not Social Security disability benefits. Kohlmeyer v. Second Injury Fund, 888 N.E.2d 281 (Ind. Ct. App. 6-10-2008), reh'g denied, vacated. [See ILB summary here.] The Court of Appeals also concluded the stipulation signed by Kohlmeyer and his employer and approved by the Board did not guarantee Kohlmeyer would be eligible for compensation from the Second Injury Fund. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over this appeal.
9:45 AM - Rudrappa Gunashekar v. Kay Grose - Kay Grose filed a complaint against the Gunashekars. The Gunashekars' attorney withdrew. They later filed a motion to continue the trial, which the court denied. Following the trial, the court entered a judgment for Grose. The Court of Appeals concluded the trial court had abused its discretion in denying the motion to continue and reversed and remanded for a new trial. Gunashekar v. Grose, No. 02A03-0712-CV-614 (Ind. Ct. App. August 12, 2008), vacated. [See ILB entry here.] The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal.
10:30 AM - Jeffrey Treadway v. State of Indiana - A jury convicted Treadway of murder, robbery and battery, and following the jury's recommendation, the Marion Superior Court sentenced him to life imprisonment without parole. In this direct appeal of the conviction and sentence, Treadway raises several issues concerning the evidence and the manner in which the trial was conducted.
This Friday, Feb. 27th:
9:00 AM - Ian J. Clark v. State of Indiana - A jury found Clark guilty of the murder of a two-year-old child, and following the jury's recommendation, the Kosciusko Circuit Court sentenced Clark to life imprisonment without parole. In this direct appeal of the conviction and sentence, Clark raises several issues concerning the conduct of the prosecutor and the manner in which the trial was conducted.
9:45 AM - Lawrence and Judy Lynn Gunkel v. Renovations, Inc. - Plaintiffs allege construction defects caused water damage in their new house. The trial court denied plaintiffs' motion to amend their complaint, dismissed plaintiffs' negligence claims, and entered net judgment in favor of the defendant contractor. The Court of Appeals affirmed in part and reversed in part in an unpublished memorandum decision. See Gunkel v. Renovations, Inc., 76A03-0609-CV-407 (Ind. Ct. App. January 27, 2008), vacated. [See ILB entry here - the "litigation hell" case.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
10:30 AM - R.Y. v. Indiana Department of Child Services - The Marion Superior Court terminated the parental rights of a mother, and the Court of Appeals affirmed in an unpublished memorandum decision. The mother has petitioned the Supreme Court to accept jurisdiction over the appeal, arguing that the evidence is insufficient to support the termination. [Here is the 10-31-09 COA opinion in The Invol. Term. of G.Y.; R.Y. (mother) v. Marion Co. Dept. of Child Svcs. (NFP).
Next week's oral arguments before the Supreme Court:
Next Thursday, March 5th:
9:00 AM - James H. Helton, Jr. v. State of Indiana -
Helton pleaded guilty to possession of methamphetamine with intent to deliver, a class A felony. The Elkhart Superior Court denied post-conviction relief. The Court of Appeals reversed, finding that Helton had been denied the effective assistance of trial counsel as a matter of law with respect to the failure to file a motion to suppress evidence. Helton v. State, 886 N.E.2d 107 (Ind. Ct. App. 5-16-2008), vacated. [See ILB summary here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:*
This Tuesday, Feb. 24th:
1:00 PM - Demetrick D. Shepherd vs. State of Indiana - Shepherd was convicted after a jury trial of the murder and rape of a fourteen-year-old girl and burglary on the residence where these crimes occurred. The trial court ordered the sentences for each conviction to be served consecutively for an aggregate sentence of ninety years. Shepherd appeals arguing that: (1) the trial court committed reversible error by admitting evidence of prior bad conduct in violation of Ind. Evidence Rule 404(b); and (2) the aggregate ninety-year sentence is inappropriate in light of the nature of the offense and the character of the offender.The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Indiana Court of Appeals Courtroom]
2:15 PM - Board of Commissioners of Hendricks County, Indiana, et al vs. Town of Plainfield, Indiana, et al - This appeal originates from an amended complaint for declaratory relief and refund of fees filed by Daum LLC, Daum Trucking, Inc., and Robert Daum (collectively, "Daum") against Town of Plainfield, Indiana, Town of Plainfield Town Council, Town of Plainfield Stormwater and Management Department (collectively, "Plainfield") and the Board of Commissioners of Hendricks County ("Hendricks County"). Two overlapping ordinances, passed by the two separate entities of Plainfield and Hendricks County, exercised jurisdiction over Daum's property. Daum asserted that Plainfield's ordinance was invalid and, therefore, storm water fees imposed thereunder were invalid. Following cross-motions for summary judgment, the trial court declared that Plainfield's ordinance governed and granted summary judgment in favor of Plainfield. Daum and Hendricks County appeal, raising the following consolidated and restated issue: Whether the trial court erred in finding Plainfield's ordinance was valid, lawful, proper, constitutional, and enforceable pursuant to Plainfield's legislative authority and police powers and its statutory authority. The Scheduled Panel Members are: Judges Najam, Kirsch and Bailey. [Where: Indiana Court of Appeals Courtroom]
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Wednesday, Feb. 25th:
1:25 PM - Fort Wayne Patrolmen's Benevolent Association vs. The City of Fort Wayne, Indiana - Appellant's-Plaintiff's Fort Wayne Patrolmen's Benevolent Association, Inc. and Fort Wayne Police Officer Michaeline Jones appeal the trial court's order denying their motion for summary judgment and granting Appellee-Defendant City of Fort Wayne's motion for summary judgment. The Appellants contend that the trial court erred in finding that Indiana Code section 36-8-4-5(a) (2006) did not require the City of Fort Wayne to reimburse Officer Jones for injuries sustained in an accident involving her take-home vehicle which she was operating in accordance with the City's Home Fleet Vehicle Program. The Appellant's also contend that the trial court erred in finding that the parties' Collective Bargaining Agreement did not require the City to reimburse Officer Jones for her injuries. The Scheduled Panel Members are: Judges Bailey, Mathias and Bradford. [Where: Lawrence North High School, Indianapolis, Indiana ]
Next week's oral arguments before the Court of Appeals that will be webcast:
Next week's oral arguments before the Court of Appeals that will NOT be webcast:
Next Tuesday, March 3th:
3:00 PM - Indiana Patient's Compensation Fund v. Gary Patrick - This is an appeal from the trial court's entry of judgment in favor of a father after witnessing the death of his adult son. The issue on appeal is whether the trial court erred in denying PCF's Motion For Summary Judgment and awarding emotional distress damages to father where (a) such damages are not recoverable under the Adult Wrongful Death Act and (b) father does not have an "independent claim" under the Medical Malpractice Act for the emotional distress he alleges he incurred as a result of the malpractice in the treatment of his son. The Scheduled Panel Members are: Judges Riley, May and Robb. [Where: Baxter Hall, Campus of Wabash College, 301 Wabash Avenue, Crawfordsville, Indiana]
Next Thursday, March 5th:
1:00 PM - Bruce C. Scalambrino, et al vs. Town of Michiana Shores, et al - Appellants-Plaintiffs filed suit against the Town of Michiana Shores, several individual defendants, and T-Mobile regarding a lease between the Town and T-Mobile allowing erection of a cell phone tower on Town property. Appellants-Plaintiffs sought a temporary restraining order, preliminary injunction, declaratory judgment, and permanent injunction against the lease. Appellants-Plaintiffs appeal the trial court's grant of summary judgment to the Defendants, contending there are genuine issues of material fact regarding whether the lease violates Town zoning ordinances, whether purported amendments to the zoning ordinances were properly adopted, and whether the amendments constitute illegal spot zoning. The Scheduled Panel Members are: Judges Riley, Robb and Barnes. [Where: Hammond City Hall, City Council Chambers, 5925 Calumet Avenue, Hammond, Indiana]
* ILB note: As of now, the 2009 COA webcasts, both live and archived, may be accessed here.
Sunday, February 22, 2009
Courts - Minnesota: "Showdown could leave our courts in chaos"
This ILB entry from Sept. 5th, 2008, headed "Commission on Courts discussion of judicial mandates," included this quote about the tension between Indiana's county judges and county councils over funding local court expenses:
The CJ observed that currently a lot of local court costs are paid by fees. And the State pays a share. But the county remains the place of last resort. If the State were paying for all the costs of the courts, the CJ said, this tension would go away. He said it was his view that this is where we ought to go. The whole mandate problem arises from financing; if the legislature were to move in the direction of HEA 1001, the mandate problem would be ameliorated.In a follow-up ILB entry the next day, I concluded:
In the end, if a similar effort to move to state funding is successful, rather than local judges submitting their budgets to county councils, local judges' recourse would become the Division of State Court Administration. And the potential for a judicial funding mandate would be elevated to the State level -- as the Supreme Court would be submitting its state-wide judicial budget to the General Assembly.It was that last sentence that came to mind today when I read this story by Patricia Lopez in the Minneapolis-St. Paul StarTribune. Some quotes:
Just seven months into the job, [Supreme Court Chief Justice Eric Magnuson ] is facing off against the man who appointed him, Gov. Tim Pawlenty, over budget cuts.
The clash could be titanic.
Pawlenty proposes a budget, and the Legislature appropriates funds. But Magnuson decides how the court system's money gets spent.
If another budget cut of 5 percent or more comes down, Magnuson will recommend dramatic action -- shutting down conciliation court, cutting hours and suspending prosecution of 21 types of cases, including property damage, harassment, probate, and more than 1 million traffic and parking cases a year.
That last step could interrupt a $200 million flow to local governments.
Magnuson said that shutting down traffic cases is no small move, "but we're running out of choices here, and I will not compromise the prosecution of criminal cases."
What happens when truants, runaways, small-time shoplifters and trespassers realize they won't be brought to court? "That will be a real problem," Magnuson said calmly. "That will be the erosion of the rule of law. That will be the tear in the fabric of society that I'm trying to warn people about." * * *
Magnuson says the courts have streamlined and now are starting to erode. Trial dates are pushed further out. Public counters are closed on some mornings. Jurors who once were paid $30 per day of duty now get $10 -- barely enough to cover parking in Minneapolis.
The courts, Magnuson said, have reached a tipping point where the focus must shift to preserving resources for criminal trials.
"We don't have the option of doing some things less well," he said. Under Pawlenty's recommendations, the courts, with a two-year budget of roughly $103 million in 2008-09, would get $6 million less in the 2010-11 budget period at a time when caseloads and expenses are rising.
Courts - "High Court to Hear DNA Testing Case: Justices to Debate Whether Convicts Should Be Guaranteed Access to Latest Techniques"
That is the headline to a lengthy story today by Robert Barnes of the Washington Post. Some quotes:
They are among more than 200 people nationwide who were freed because DNA tests performed after their convictions showed they could not have committed the crimes.The case, District Attorney's Office v. Osborne, is scheduled to be argued March 2. Access the briefs here.
And they now have joined civil rights groups, some current and former prosecutors, and a convicted Alaskan rapist to urge the Supreme Court to apply constitutional protections for the first time to what the prisoners' lawyers call "arguably the most important development in the history of forensic science: the advent of DNA testing."
They are opposed by victims rights groups; the vast majority of states, which have a patchwork of laws granting DNA access; and the federal government. The governments say that creating a constitutional right to the testing would infringe on states' rights, overwhelm them with frivolous demands and create an endless right of appeal for those convicted of the most violent crimes.
"These statutes reflect a careful balancing of the government's interests in finality, comity, and conservation of scarce resources," lawyers for the state of Alaska argue, "against a prisoner's interest in justice in those rare cases" when innocence could be proven by new forensic technology.
It is the Supreme Court's first case that confronts the dilemma of how to deal with DNA evidence, which former attorney general John D. Ashcroft called the "truth machine of law enforcement."
Ind. Courts - "Judge gets tough in Marion County traffic court"
Jon Murray of the Indianapolis Star has a lengthy front-page story today subheaded: "Marion County drivers are put on notice: With stern manner and stiff fines, judge tries to get people to focus." The report begins:
Getting a ticket may be painful enough, but Marion County's traffic court has been adding to the suffering since a new judge took the bench this year. Stiffer fines, jam-packed proceedings and a gruff atmosphere have become routine as Judge Bill Young has taken charge of the busiest court in Indiana.[More] See this take on the story from Ogden on Politics by Paul K. Ogden.
In part, the changes reflect Young's no-nonsense approach to the job.
"I've never seen so much whining and groaning as over a $100 ticket," said Young, who this month handed a woman a one-year jail sentence for driving with a suspended license.
But he's also working to accelerate the handling of disputed traffic tickets.
As he has double- or triple-booked court sessions over the past six weeks in the push to reduce the wait to see a judge, Young has drawn complaints from lawyers, police officers waiting on overtime and ticketed drivers already irritated by a visit to traffic court.
"We've been going through a lot of pain out there," Young said.
Most drivers who have taken their tickets to his court would agree. Fines if you fight a ticket for speeding or running a red light and lose often exceed $500, and traffic court has little space and tight parking at its site at 9049 E. 10th St., which it shares with an Indianapolis Metropolitan Police Department training facility.
Courts - "40th anniversary of the Supreme Court's decision in Tinker v. Des Moines Independent Community School District, which established students' free speech rights"
From C-SPAN's Amercia and the Courts program last evening:
February 24th marks the 40th anniversary of the Supreme Court's decision in Tinker v. Des Moines Independent Community School District, which established students' free speech rights. In an interview with Mary Beth Tinker and others, C-SPAN takes a look at the case, its effect on student speech, and how recent Supreme Court decisions have impacted students' free speech rights today.Here is a long list of ILB entries on student free speech, including Friday's entries on "Harsh Words on the Web" and the 7th Circuit's decision in Hosty v. Carter in this March 24, 2006 ILB entry.
Saturday, February 21, 2009
Ind. Courts - Judicial Center's Legislative Update #6; and more about the increase in the automated record keeping fee
[Note: Several readers have expressed to me an interest in how to research legislative history. This is a start. If there is enough interest, I may do more on this.]
Here is the Indiana Judicial Center's Legislative Update, current through Feb. 20th -- this is a way to keep on top of court bills, and bills impacting criminal and civil matters, although, as noted in this entry from Feb. 13th, it does not appear to be entirely comprehensive.
For instance, not mentioned this week is HB 1435, about which Patrick Guinane reported in the NWI Times on Feb. 19th:
The Indiana House voted 53-41 Thursday to add a $10 filing fee to Lake County court cases, a proposal that would generate nearly $800,000 a year to build a consolidated courthouse in Crown Point.The automated record keeping fee. As noted in Legislative Update #5:
House Bill 1435, sponsored by Rep. Linda Lawson, D-Hammond, follows a 2006 recommendation of the Good Government Initiative, an efficiency study sponsored by the region's largest employers.
"They wanted us in Lake County to consolidate our courts into a central area," Lawson told the House colleagues.
Rep. Charlie Brown, D-Gary, objected to the proposal, arguing it would disenfranchise Gary residents who lack adequate transportation to make the 13-mile trip south to the county seat. Lawson said county courthouses likely would remain open in Gary and Hammond, but that assurance did not satisfy Brown.
"This is too vague," he said. "I can't go on a wing and a prayer."
The $10 fee would be paid by those who file civil cases, such as divorces, along with convicted criminal defendants and those who enter pretrial diversion programs.
The legislation, which would generate an estimated $768,000 a year, now moves to the Senate.
The Senate Appropriations Committee heard SB 121 concerning the automated record keeping fee authored by Sen. Bray. This bill would increase the fee from $7 to $10 between July 1, 2009 and June 30, 2013 and reduce the fee back to $7 after June 30, 2013. Mary DePrez, Director and Counsel for Trial Court Technoloy, Division of State Court Administration, spoke in favor of the legislation. Representatives from the Indiana Clerk’s Association testified that they would prefer the fee increases be retained locally. The Committee held action on this bill.The County Clerks' rationale, the ILB found out with some inquiries, was:
The clerk’s would rather see the $3 stay local to help with their record preservation. The increase in case load, especially with small claims, civil collections and mortgage foreclosures, has gone up substantially with the bad economy. This would help counties at the local level with their record preservation as well as keeping their current case management system as long as it complies with state standards.That confirms my thoughts, that: "If you are one of the more than 80 counties that is not part of the JTAC network, then why would you want your fees to go out to support it, when you have your own expenses that you need to pay for."
However, the County Clerks' success appears to be short-lived. As Update #6 reports this week:
The House Ways and Means Committee heard HB 1001, the budget bill, authored by Rep. Crawford. In addition to providing for a one year state budget, the bill also includes amending the automated record keeping fee from $7 to $10 between July 1, 2009 and June 30, 2013, and reduces the fee back to $7 after June 30, 2013. The bill passed as amended 14-9.
Here is the legislative history part, which I developed because I wanted to trace how the fee had increased over the years.
HB 1001 passed the House yesterday. Here is the language of the provision:
SECTION 81. IC 33-37-5-21, AS AMENDED BY P.L.234-2007, SECTION 69, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.The same section was also amended two years ago, by the 2007 budget bill. Here were the changes:
(b) The clerk shall collect
a seven dollar ($7)an automated record keeping fee in the following amounts:
(1) Seven dollars ($7) after June 30, 2003, and before July 1,
FourTen dollars ($4)($10) after June 30, 2011.2009, and before July 1, 2013.
(3) Seven dollars ($7) after June 30, 2013.
SECTION 69. IC 33-37-5-21 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.IC 33-37-5-21 was enacted in 2004 - its current history line reads:
(b) The clerk shall collect
the followinga seven dollar ($7) automated record keeping fee.
(1) Seven dollars ($7) after June 30, 2003, and before July 1,
(2) Four dollars ($4) after June 30,
As added by P.L.98-2004, SEC.16. Amended by P.L.234-2007, SEC.69.However, this is somewhat misleading, because PL 98-2004 was the recodification of Title 33 and SECTION 16 added the entire Article 37 on Court Fees.
In other words, the automated record keeping fee did not start in 2004, but sometime before.
To do further research, we need to go behind the recodification and find the derivation of IC 33-37-5-21. The Table provides:
"33-37-5-21 . . . . . . . . . . . . . . . . . . . . . . . 33-19-6-19."So how to know what the history of IC 33-19-6-19 was? That is not easy to ascertain and in fact was the subject of one of my Res Gestae articles, where I wrote:
Except for a few original provisions necessary to implement the new Code, every section of the 1971 Indiana Code was followed by a line identifying what provision of the former law had been its source. * * *What to do now? If the General Assembly kept the older editions of the Indiana Code online, rather than replacing each edition with the new edition, it would be easy -- look for IC 33-19-6-19 online in the 2003 Indiana Code. Lacking that option, one would need to look at actual books - replacement volumes of West or Burns, for example.
Subsequent changes to a provision were indicated by “history lines,” making it relatively simple to trace the evolution of the law. * * *
If you look through the Indiana Code today, you will learn that relatively few source lines continue to exist. The reason is that whenever a recodification of an area of law is enacted by the General Assembly, neither the source line nor the existing history line are retained, making understanding the genesis of a provision much more difficult.
I was able to locate the language from the 2003 Indiana Code:
IC 33-19-6-19 Automated record keeping feeWhen the 2004 General Assembly recodified Title 33, this language of IC 33-19-6-19 should have become 33-37-5-21, with no substantive change. And that looks to be the case - "(1) five dollars ($5) before July 1, 2003;" was dropped off because it was no longer relevant. Here is the recodified provision on p. 319 of the SEA 263-2004:
Sec. 19. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect an automated record keeping fee of:
(1) five dollars ($5) before July 1, 2003;
(2) seven dollars ($7) after June 30, 2003, and before July 1, 2009; and
(3) four dollars ($4) after June 30, 2009.
As added by P.L.183-2001, SEC.12. Amended by P.L.141-2002, SEC.3.
Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.But we are also interested in the history line to the 2003 Indiana Code section, the pre-recodification version. It shows:
(b) The clerk shall collect the following automated record keeping fee:
(1) Seven dollars ($7) after June 30, 2003, and before July 1, 2009.
(2) Four dollars ($4) after June 30, 2009.
As added by P.L.183-2001, SEC.12. Amended by P.L.141-2002, SEC.3.So, finally, we see that that the automated record keeping fee originated in 2001 - here is that 2001 language of the new IC 33-19-6-19, from PL 183-2001, SECTION 12 (HEA 1130-2001):
Sec. 19. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.The section was amended the following year by PL 141-2002, SECTION 3 (SEA 315-200):
(b) The clerk shall collect an automated record keeping fee of two dollars ($2).
(a) This section applies to all civil, criminal, infraction, and ordinance violation actions.Essential in doing the above research quickly, without the need for constant backtracking through dozens of web pages, was this web tool I've developed, The Indiana Law Blog's Legislative Research Shortcuts.
(b) The clerk shall collect an automated record keeping fee of:
twofive dollars ($2).($5) before July 1, 2003;
(2) seven dollars ($7) after June 30, 2003, and before July 1, 2009; and
(3) four dollars ($4) after June 30, 2009.
With this information, it is possible to chart the increases in the automated record keeping fee from its origin to the present day:
|Increases in Annual Automated Record Keeping Fee Through the Decade|
|2002||$5 annually until 7-1-03, then $7 annually until 7-1-09, then $4 annually thereafter.|
|2004||$7 annually until 7-1-09, then $4 annually thereafter.|
|2007||$7 annually until 7-1-11, then $4 annually thereafter.|
|2009||$7 annually until 7-1-09, then $10 until 7-1-13, then $7 annually thereafter. [proposed]|
See also this ILB entry from Nov 6, 2008 - "Making Sense of Court Fees."
Courts - 9th Circuit strikes down California violent video game ban
Here is a long list earlier ILB entries on efforts to ban video games, in Indiana and nationally, including this ILB from Feb. 20, 2007 headed "Another year, another effort to ban video games." (That story was mostly about Indiana efforts.)
Friday the 9th Circuit struck down California's ban. Samantha Young of the Washington Post reported yesterday:
SACRAMENTO, Calif. -- A federal appeals court on Friday struck down a California law that sought to ban the sale or rental of violent video games to minors.Here is the 30-page opinion in the 9th Circuit case.
The 9th U.S. Circuit Court of Appeals ruled that the 2005 law violates minors' rights under the Constitution's First and 14th amendments. The three-judge panel's unanimous ruling upholds an earlier ruling in U.S. District Court.
The law would have prohibited the sale or rental of violent games to anyone under 18. It also would have created strict labeling requirements for video game manufacturers.
In a written opinion, Judge Consuelo Callahan said there were less restrictive ways to protect children from "unquestionably violent" video games. For example, the justices said the industry has a voluntary rating system and that parents can block certain games on video consoles.
The law's author, state Sen. Leland Yee, D-San Francisco, said he wanted Attorney General Jerry Brown to appeal the decision to the U.S. Supreme Court.
"We need to help empower parents with the ultimate decision over whether or not their children play in a world of violence and murder," Yee, a child psychologist, said in a statement.
A spokesman for Brown could not immediately say whether California would appeal to the Supreme Court.
California lawmakers had approved the law, in part, by relying on studies suggesting violent games can be linked to aggression, anti-social behavior and desensitization to violence. The justices dismissed that research.
"None of the research establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable," Callahan said in her ruling.
The law never took effect and was challenged shortly after it was signed by Gov. Arnold Schwarzenegger. A U.S. District Court blocked it after the industry sued California over constitutional concerns.
The WSJ Law Blog had a good entry on the decision yesterday, by Dan Slater, who writes:
In defending the law, the state argued that violent content should be judged by the same obscenity standards as sex. (For the text of the act, which contains language that tracks the Miller test, see page 5 of the opinion.) Just as the government can prohibit the sale of explicit pornography to minors, state lawyers contended, it should be allowed to establish an adults-only category of ultra-violent video games.
But a unanimous appellate court ruled that Ginsburg v. New York — a 1968 U.S. Supreme Court ruling that allowed tighter restrictions on selling explicit materials to minors than to adults — applies only to sexual content and not to violence. “The Supreme Court has carefully limited obscenity to sexual content,” wrote Judge Consuelo Callahan. “We decline the state’s invitation to apply the (same) rationale to materials depicting violence.”
Friday, February 20, 2009
Law - Even more on: "Harsh Words Die Hard on the Web": Students at Yale Law and Indiana University Feel Effects of Anonymous Attacks
Supplementing this ILB entry from this morning, Yale Law School had a conference last weekend, "The Future of Student Internet Speech: What Are We Teaching the Facebook Generation?" Access the agenda here. And Yale Daily News had a story on the conference, reported by Anna Sophie Creager, on Feb. 16. It begins:
A case pitting Connecticut public school administrators against a high school student’s personal blog took center stage at a Yale Law School conference on free speech over the weekend.Here is a long list of earlier related ILB entries, including Indiana's "MySpace case."
The case, Doninger v. Niehoff, ruled on contentious issues forming the heart of debate at the conference, “The Future of Internet Speech: What Are We Teaching the Facebook Generation?” hosted by the Yale Law School’s Law and Media Program. Approximately forty students, professors and journalists gathered for the two-day conference, which was precipitated by a series of recent court decisions , including Doninger v. Niehoff, that conference attendees said have restricted the ability of young people to write and speak freely in and out of school or on the Internet.
In Doninger v. Niehoff, courts upheld a school district’s decision to kick student Avery Doninger out of student government after Doninger called school officials “douchebags” in a personal blog.
“I feel as if I am standing on the edge of an abyss that is the grave of the First Amendment Rights of students,” Doninger’s attorney Jon Schoenhorn said.
Courts have said public schools have the authority to restrict student speech if it interferes with the school’s educational mission: In Doninger v. Niehoff, a Connecticut federal court sided with school officials, arguing that student Doninger’s vulgar language hindered the school administrators’ ability to create a safe and civil school environment.
Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP), including a question of first impression on the propriety of a bank's refusal to pay a cashier's check.
For publication opinions today (3):
In David Ashworth v. State of Indiana , a 16-page opinion, Judge Robb writes:
Following a jury trial, David Ashworth appeals his conviction and sentence for murder, a felony. On appeal, Ashworth raises three issues, which we restate as 1) whether the trial court properly admitted opinion evidence from an investigating detective regarding the detective's elimination of two individuals as suspects; 2) whether sufficient evidence supports Ashworth's conviction; and 3) whether the trial court abused its discretion in sentencing Ashworth. Concluding that any error in admitting opinion testimony from the detective was harmless and that sufficient evidence supports the jury's guilty verdict, we affirm Ashworth's murder conviction. We also conclude, however, that the trial court abused its discretion in sentencing Ashworth because the sole aggravating circumstance of Ashworth's criminal history is insufficient to sustain his statutory maximum sentence of sixty years. As such, we affirm in part, reverse in part, and remand with instructions for the trial court to revise Ashworth's sentence to an enhanced term of fifty years.In South Central Bank of Daviess County v. Lynnville National Bank, Bryan K. Fisher, et al. , a 19-page opinion, Chief Judge Baker writes:
Although Indiana adopted Article 3 of the Uniform Commercial Code decades ago, we have not had occasion in this State to consider the propriety of a bank's refusal to pay a cashier's check. Thus, this appeal presents an issue of first impression in Indiana, namely, under what circumstances - if any - an issuing bank may properly refuse to pay a cashier's check.In Thomas Grabowski, et al. v. Brian Waters and Richard Klare , a 12-page opinion, Judge Bradford writes:
Appellant-plaintiff South Central Bank of Daviess County (South Central) appeals the trial court's order denying South Central's motion for partial summary judgment and granting appellee-defendant Lynnville National Bank's (Lynnville) motion for summary judgment on South Central's complaint against Lynnville. Specifically, South Central alleges that the trial court erred by concluding that Lynnville was entitled to refuse to pay a cashier's check that it had issued. Finding that Lynnville wrongfully refused to pay the cashier's check, that none of the applicable defenses are available to Lynnville, and that South Central did not fail to mitigate its damages, we reverse and remand with instructions to enter final judgment in South Central's favor in the amount of the original cashier's check - $31,917.55 - plus expenses, interest, and consequential damages, if any, to be determined by the trial court. * * *
Because South Central is an HDC, the only defenses that could be raised by Lynnville are the “real” defenses enumerated by Indiana Code section 26-1-3.1-305(a)(1):
(A) infancy of the obligator to the extent it is a defense to a simple contract;
(B) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor;
(C) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms; or
(D) discharge of the obligor in insolvency proceedings[.]
See I.C. § 26-1-3.1-305(b) (explaining that the above-listed defenses are the only ones available against an HDC). None of these defenses apply to Lynnville — it is plainly not an infant, nor has it filed bankruptcy. There has been no suggestion of duress, lack of capacity, or illegality of the transaction between Lynnville and the Fishers. Finally, Lynnville's bank officer signed the cashier's check knowing exactly its amount and to whom it was payable, so the fraud defense is similarly inapplicable. * * *
Conclusion. In sum, we hold that (1) Lynnville wrongfully refused to pay the cashier's check; (2) South Central was a holder in due course of that check, meaning that Lynnville's defenses are extremely limited; (3) none of the applicable defenses are available to Lynnville; and (4) South Central did not fail to mitigate its damages. Therefore, we reverse and remand with instructions to enter final judgment in South Central's favor in the amount of the original cashier's check- $31,917.55 - plus expenses, interest, and consequential damages, if any, to be determined by the trial court.
The judgment of the trial court is reversed and remanded with instructions.
[ILB note] This case was argued Feb. 3 - you may watch the webcast here]
Appellant-Defendant Thomas Grabowski (“Thomas”) appeals the trial court's denial of his motion to set aside a default judgment entered in favor of Appellees-Plaintiffs Brian Waters and Richard Klare (collectively, “Plaintiffs”) in their action to quiet title to certain real estate previously owned by Thomas's parents, Frank and Jane Grabowski (“the Grabowskis”). Upon appeal, Thomas claims that the default judgment is void for lack of personal jurisdiction due to improper service of process. We affirm. * * *NFP civil opinions today (1):
In their complaint, Plaintiffs stated that, according to public records, the Grabowskis' address was in Whiting, Indiana, in Lake County. That same day, Plaintiffs filed a praecipe requesting separate service by the Clerk via certified mail to each of the Grabowskis at their Whiting address. Because prior efforts at serving the Grabowskis had proven unsuccessful, the praecipe further requested that the Clerk serve the Grabowskis by publication in the Michigan City News Dispatch newspaper in LaPorte County pursuant to the requirements of Trial Rule 4.13. In requesting service by publication, Waters signed an affidavit indicating that the Grabowskis' Whiting address was obtained from public records which were at least ten years old, that a diligent search had been made to update the records, and that more reliable information concerning their whereabouts could not be found. Service of process, both by certified mail in Lake County and publication in LaPorte County as requested, did not yield a response.
On April 16, 2007, Plaintiffs filed a motion for default judgment and an accompanying affidavit averring that summons by publication was made in the Michigan City News-Dispatch on February 27, 2007; March 6, 2007; and March 13, 2007, constituting three successive weeks, and that none of the defendants had responded. On April 16, 2007, the trial court entered a default judgment in favor of Plaintiffs, quieting title to the property in their favor and declaring them owners thereof in fee simple, free from any rights or interests of any other persons, including the Grabowskis and their heirs and successors in interest. * * *
Because the instant case involved tax-sale property previously owned by now- deceased persons lacking an estate or named representative, and given the Plaintiffs' efforts to serve these persons and their unnamed heirs and successors in interest both at their last known address and by publication in the county where the property at issue is located, we agree with the trial court that such notice was reasonably calculated to apprise the persons and their unnamed successors in interest, including Thomas, of the instant action. This is so especially in light of the fact that the record lacks evidence demonstrating how a more diligent search would have revealed the identities or locations of interested parties. Accordingly, we affirm the trial court's denial of Thomas's motion to set aside the default judgment against him.
James and Rachel Willoughby v. Donald Lockard (NFP) - "In summary, we conclude that the Settlement Agreement was not ambiguous and that the Willoughbys have failed to establish that the 2007 survey and the deed description are inconsistent with its terms. The trial court did not err in confirming the Settlement Agreement and ordering the Willoughbys to execute the quitclaim deed."
NFP criminal opinions today (14):
Ind. Decisions - A question for ILB attorney-readers
I'm getting ready to post today's Court of Appeals opinions. There are 3 for publication opinions and 15 not-for-publication (NFP), a pretty typical breakdown.
I know most of you read the NFPs. My question is, why read them - the civil and criminal?
I'm working on an article about NFPs. You may also tell me, if you choose, whether you think the NFPs' time has passed. Thanks for your help.
Law - More on: "Harsh Words Die Hard on the Web": Students at Yale Law and Indiana University Feel Effects of Anonymous Attacks
Updating this lengthy ILB entry from Sept. 6, 2008, David Margolick has an article upcoming in the March 2009 issue of Portfolio titled "Slimed Online: Cyber-bullying has reached a new low—at the highest levels of the professional world. So when anonymous attackers went after two Yale law students, they struck back and filed suit. their case may help change the rules."
Another story of interest appeared in the Feb. 15th Boston Globe, reported by Drake Bennet and headed "Time for a muzzle: The online world of lies and rumor grows ever more vicious. Is it time to rethink free speech?"
Environment - Still more on: Impact of IDEM enforcement changes?
Indiana Department of Environmental Management will not make substantial changes to its proposed new enforcement policy as a result of its meeting Thursday with the regional U.S. Environmental Protection Agency.Rick Callahan of the AP wrote a story before the meeting yesterday, that concludes:
But the EPA plans to seek input on the policy from concerned citizens soon.
IDEM critics have said the new policy would make IDEMless likely to enforce against a facility for permit violations -- unless the violation causes actual harm to someone's health or the environment.
IDEM Commissioner Tom Easterly denied that charge after he and top managers from nearly every IDEM division met with EPA officials in Indianapolis for nearly 2 hours Thursday to discuss IDEM's proposal.
"It never said you had to have actual harm. It said there has to be a threat of actual harm. But that's a big difference," he said. "I've been reading things people are writing. That's not our interpretation at all of what the intent was or the words mean."
Easterly said the only change IDEM plans to make to the document is to reflect that the agency no longer has a separate enforcement branch. [ILB - here is "the document']
"There are wording changes, so I can't say there (are) no other changes, (but) it's essentially the same document," Easterly told the Post-Tribune after the meeting.
EPA spokeswoman Phillippa Cannon said agency officials will be in a "listening mode" during today's meeting with IDEM Commissioner Thomas Easterly and other top agency officials.
"We're meeting with them to listen to their responses to the questions we've raised. We'll see what happens ...," she said.
Cannon said the agency would meet soon with environmental groups to listen to their concerns about IDEM's new policies.
Environmental advocates and state lawmakers said they are eager to hear the EPA's assessment of what the changes might mean for Indiana, which Forbes magazine ranked in 2007 as the second-most polluted state, behind only West Virginia.
IDEM's critics are most concerned about a pending policy change that would both redefine what constitutes serious environmental violations and would dictate when the agency could impose penalties against polluters.
Ind. Gov. - More on: "Who Are These People?"
Updating this ILB entry from Feb. 12th are two editorials today.
From the Fort Wayne Journal Gazette's editorial:
A handful of state senators demonstrated a disappointing lack of leadership in refusing to support measures that would allow the full legislature to consider common-sense changes to improve county government.From the Evansville Courier and Press' editorial:
The Senate Local Government Committee rejected a resolution that would allow Hoosiers to consider eliminating the county treasurer, coroner, recorder and surveyor as constitutionally required elected offices.
Such a move would take years and approval by Hoosiers in a statewide referendum. But committee members don’t even want to give Hoosiers the chance to vote on it. * * *
And the Senate Local Government Committee drastically watered down a move that would eliminate the 1,008 townships and more than 4,000 elected officials who preside over an antiquated, inefficient form of government. Instead, the committee voted to ban township officials from hiring their relatives – a common practice – and require county councils to review township budgets. While both moves are positive, they are baby steps – and the fact that township trustees routinely hire their own spouses ought to be evidence of their too-often ethically compromised approach to spending taxpayer dollars.
With a Wednesday deadline looming to adopt bills that originated in the Senate, lawmakers should amend the bills on the floor to accomplish their original purposes.
The Senate weakened another key bill that would have replaced the county commissioners with a single county executive who would be more responsible to voters and end the bad-government practice of allowing commissioners to be both executives and legislators. Instead, senators voted 30-19 to pass a ridiculous bill that would allow a patchwork of different county government structures.
That the proposal to end township government in Indiana went down to defeat was no shock, although we had expected the fall to come much later in the session, when the government reform measure backed by Republican Indiana Gov. Mitch Daniels reached the Indiana House.
There, House Speaker Pat Bauer, D-South Bend, had let it be known that this and other local government reform measures would get little consideration.
If proponents of this worthy bill had a chance, it was to first get it through the Indiana Senate, and then hope to fight it out in the House.
Instead, the township measure was gutted Wednesday in the Indiana Senate, where Daniels' Republican Party holds the majority. All that survived was a provision to prevent township officials from employing relatives and another to require county council review of township budgets.
Had the proposal been approved as written — and there is an outside chance it could still happen — it would have ended all township government offices not eliminated last session by the bill that targeted and took out most township assessors in Indiana.
This and other local government reform measures, recommended last year by the Kernan-Shepard Commission, are intended to downsize local government. As such, there is no better place to begin than with township government, which had a legitimate place in Hoosier life before the invention of the car and the computer. In the days of the horse and buggy, it made sense to have a nearby government office where citizens could do public business.
But no more. In an era when legitimate questions can be raised about whether we need both city and county governments, with oft overlapping services, we certainly do not need a third layer of local government.
Ind. Decisions - Pelley convictions upheld: Murder trial delay did not violate rule.
The Indiana Supreme Court has upheld the murder convictions of a man for the 1989 Lakeville killings of four of his family members so he could attend high school prom night.
In a decision published Thursday, the court affirmed the four murder convictions of Robert Jeffrey Pelley, 37, who is serving a 160-year prison sentence for the gunshot deaths of his father, stepmother and two stepsisters.
The decision came nearly a year after the Indiana Court of Appeals in April overturned Pelley's convictions on the grounds that prosecutors had taken too long to bring Pelley to trial, violating his right to a speedy trial.
The right to a speedy trial means a defendant must be brought to trial within one year of his arrest unless the delay can be attributed to the defendant himself, to court congestion or to an event that the court considers an emergency.
Pelley was charged with the murders in 2002 after an investigation was reopened, but his trial did not take place until 2006. The delay was partly caused by an appeal of a judge's decision not to allow counseling records of the Pelley family to be presented as evidence at trial.
That delay was not a violation of the speedy trial rule and so did not justify throwing out Pelley's convictions, the Supreme Court has determined.
"The importance of the decision going forward for prosecutors is that we still have the ability to challenge a trial court ruling before the case is concluded," St. Joseph County Prosecutor Michael Dvorak said. "That was not taken away from the arsenal of tools that prosecutors have available to them." * * *
[Stacy R. Uliana, Pelley's attorney in the appeal] said Pelley now has three options: to ask the Indiana Supreme Court to rehear the case; to ask the United States Supreme Court to hear a couple of the issues raised on appeal; and to file a post-conviction relief petition bringing forth evidence that was not allowed at trial.
A jury found that Pelley's motives for the killings involved issues with his blended family as well as prom night restrictions his father, the Rev. Robert Pelley of the Olive Branch Church, had placed on him April 29, 1989.
In addition to upholding Pelley's convictions on the basis of the speedy trial issue, the Supreme Court also considered other issues brought on appeal: lack of evidence to support the convictions; admission of certain hearsay statements as well as evidence of third-party motives; and a judge's denial to appoint a special prosecutor in the case.
Ind. Decisions - Bloomington attorney secures $157 million judgment for Lafayette woman whose husband died after falling from a defective deer-hunting tree stand
A press release from the Ken Nunn Law Office announces:
BLOOMINGTON, Ind., Feb. 19 /PRNewswire/ -- Attorney Mike Phelps of Bloomington, Ind., based Ken Nunn Law Office on Tuesday secured a $157 million judgment for a Lafayette, Ind., woman whose husband died after falling from a defective deer-hunting tree stand.
It is the largest single-plaintiff judgment for a wrongful death ever awarded in Indiana and one of the largest ever in the United States, according to Jury Verdict Research, an industry publication that has tracked trends in jury verdicts and settlements since 1961.
Phelps filed suit on behalf of the plaintiff, Carol Simonton, in February 2006, for the wrongful death of her husband, Timothy Simonton. He was hanged and strangled to death by the tree stand's safety cord, which was designed to prevent injury during a fall.
Each of the potential defendant companies, L&L Enterprises of Hattiesburg, Miss., Ol' Man Tree Stands of Jay, Fla., and TSR Inc. of Pace, Fla., failed to show for the trial, which was held at Tippecanoe Superior Court 1 in Lafayette, Ind.
Jurors reached the default judgment in one hour, awarding Mrs. Simonton $157 million in damages -- $155 million more than the original $6,000 for funeral expenses and $1.5 million for Timothy Simonton's lifetime lost wages that she had originally sued for.
Though the companies involved never responded to the lawsuit, in July 2007 -- more than a year after Simonton was killed -- TSR Inc. recalled 9,000 Ol' Man Tree Stand units and 500 sets of potentially defective replacement pins, according to the U.S. Consumer Product Safety Commission.
"We were very pleased that this jury listened to the evidence and came out with a fair verdict consistent with the facts and evidence presented," Nunn said. "Mr. Phelps did an outstanding job for Mrs. Simonton by helping to remove a poorly designed, defective product from the market, which will prevent tragedies like hers from happening again."
Thursday, February 19, 2009
Ind. Decisions - Transfers granted today in two cases
The transfer list will not be available until Monday, Feb. 23rd, but the ILB has received notice of two transfers granted today, Thursday, Feb. 19th.
The first is the case of Tommy D. Alvey v. State of Indiana (see ILB summary of COA Dec. 8, 2008 opinion). "[W]e address only the following dispositive issue: whether Alvey may challenge the court’s denial of his motion to suppress now that he has pleaded guilty. We affirm."
The second case is Brennen Baker and Moisture Management v. Tremco Inc. and Rick Gibson, a 26-page, July 16th, 2008, 2-1 COA opinion (see ILB summary - 6th case). According to my information, "both petitions" were granted. From the opinion:
Baker and Moisture Management contend that the trial court erroneously granted summary judgment to Tremco and Gibson with respect to their claims that (1) Baker’s covenant not to compete with former employer Tremco is unenforceable, (2) Tremco tortiously interfered with Baker’s business activities, (3) Tremco wrongfully discharged Baker, (4) Gibson defamed Baker, and (5) Tremco violated Indiana’s blacklisting statute. We affirm in part, reverse in part, and remand with instructions.
Courts - "Roane residents file suit against TVA for ash spill "
Law suits are being filed as a result of the TVA coal ash spill (see ILB entries here) last December in Tennessee.
The Knoxville News has a story today that begins:
The cameras aren't rolling, but the court papers keep shuffling.The story includes a link to the 39-page federal complaint filed Feb. 18th.
The law firm associated with environmental activist Erin Brockovich filed a federal lawsuit Wednesday against TVA on behalf of more than 100 Roane County residents who say they've been affected by the Dec. 22 coal ash spill at the Kingston power plant.
The lawsuit won't be a class-action case, said Robin Greenwald, the chief environmental lawyer for New York-based Weitz & Luxenberg.
"The people who signed up with us didn't want to go the class-action route," she said. "Each person is a stand-alone person who believes they've been injured. They believe they have injuries specific to them."
The lawsuit doesn't spell out the damages those 106 residents seek.
"We have asked the court to determine that amount at trial," said Roger May, a Nashville lawyer working with Weitz & Luxenberg on the case. "We have asked for a jury trial. There is a request for medical monitoring, since it's unknown at this time the effects the spill may have on everyone's health."
[More] See this lengthy report from the Center for Public Integrity, titled "Coal Ash: The Hidden Story: How Industry and the EPA Failed To Stop a Growing Environmental Disaster ."
Courts - "Do Federal Judges Discriminate Against Discrimination Claims?"
That is the question posed in a WSJ article today and discussed here in the WSJ Law Blog. A quote:
The first piece of legislation signed by Obama was the Lilly Ledbetter Fair Pay, Act, which makes it easier for to sue over pay discrimination.
But the fact that more workers have standing to sue doesn’t mean they will be warmly received in court, if previous patterns hold steady. From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy.
The bad track record for discrimination cases has been ascribed to everything from a dearth of minorities on the bench to inherent difficulties in proving job discrimination, which is rarely overt.
Law - "Former fed Blakey gets top Cook County corruption-fighting post"
Rummana Hussain, Criminal Courts Reporter for the Chicago Sun Times, writes today:
Cook County State's Attorney Anita Alvarez introduced Jack Blakey today as her office's new special prosecutions chief.
The former assistant U.S. attorney will be in charge of pursuing corruption cases, as well as organized-crime and narcotics investigations.
Blakey moves to Alvarez's staff from the office of U.S. Attorney Patrick Fitzgerald, where he was on the team that successfully prosecuted Tony Rezko on corruption charges involving state of Illinois deals under ousted Gov. Rod Blagojevich.
As Chicago Sun-Times columnist Michael Sneed reported today, crime-busting is in Blakey's blood. His father, George Robert Blakey, was the principal author of the Racketeer Influenced and Corrupt Organizations Act, known for short as the RICO law, that's often used to prosecute organized-crime figures, and is a preeminent authority on the law. The father has been a law professor at the University of Notre Dame since 1980 and, before that, also taught there from 1964 to 1969.
Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)
For publication opinions today (4):
Elizabeth and Terry Baker v. Donnie Lee is a grandparent visitation case where the paternal grandmother (Baker) adopted the children and the trial court awarded paternal grandfather (Lee) visitation. In a 7-page opinion, Judge Bailey writes:
Issue: whether the trial court erred in concluding that Lee had standing to pursue his right to grandparent visitation with the Children after their adoption by the Bakers. * * *Joseph M. Mateyko v. State of Indiana - "Without an appellee’s brief from the State, Mateyko need only present a prima facie showing of error. Under this standard of review, we agree with Mateyko that the State failed to present sufficient evidence to show that he violated the above-mentioned condition of his probation. Although we obviously do not condone Mateyko’s vulgar language, he was essentially correct in his assertion that he was not prohibited from seeing his children. We further note that this incident occurred during Mateyko’s first therapy session. Under these facts and circumstances, we cannot say that Mateyko failed to “attend, actively participate in and successfully complete a court-approved sex offender treatment program.” Appellant’s App. p. 20. We therefore reverse the trial court’s order finding that Mateyko had violated this condition of his probation. Reversed. "
The Bakers filed an Indiana Trial Rule 12(B)(6) motion to dismiss Lee’s petition for failure to state a claim upon which relief could be granted. They contended that Lee lacked standing to pursue visitation with the Children after the adoption because (1) he was no longer a “grandfather,” and (2) he had not previously established visitation rights under the Grandparent Visitation Act, Indiana Code Section 31-17-5-1 et seq. (“the GVA”). * * *
We find that Indiana Code Section 31-17-5-9 clearly permits grandparent visitation to survive adoption of a child by another biological grandparent. The legislature did not carve out an exception for an adoptive biological grandparent who is married to a non-relative of the adoptee(s). It is logical to assume that many, possibly most, adoptive parents have a spouse who is also an adopting parent. In essence, the Legislature did not require that every party to the adoption be related to the adopted child or children.
Moreover, we have long recognized that our Legislature intended to extend special protection to existing grandparent/grandchild ties in providing for post-adoptive visitation. * * *
The visitation order from the guardianship court, grounded in Lee’s statutory right to seek grandparent visitation, predated the adoption. The GVA right to visitation is survivable, Ind. Code § 31-17-5-9, and the Jackson Circuit Court did not err in its recognition that Lee’s grandparent visitation could continue after the biological relative adoption. Affirmed.
In R.W., a Child Alleged to be a Delinquent Child v. State of Indiana , an 11-page opinion, Judge Najam writes:
R.W. appeals from his adjudication as a delinquent child for committing Public Intoxication, a Class B misdemeanor when committed by an adult. He presents two issues for our review, but we address only the following dispositive issue: whether the trial court provided R.W. a meaningful opportunity to consult with his mother regarding the waiver of his right to counsel during his initial hearing. We reverse. * * *James J. Redd v. Penny E. Redd - "Because we conclude that the trial court erred when it found that J.R. was emancipated and has repudiated the parent-child relationship with Mother, we remand this case to the trial court to consider whether Mother should be required to contribute towards J.R.s post-secondary educational expenses. However, the trial court did not err when it ordered Father to pay thirty-two percent of K.R.'s high school tuition and pay $1000 of Mother's attorney fees. Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. "
There is no evidence in the record to demonstrate that R.W. was given any opportunity to consult with his mother. Accordingly, the State has not met its “heavy burden” to demonstrate that R.W. satisfactorily waived his right to counsel. Cherrone, 726 N.E.2d at 254. Therefore, R.W.'s subsequent confession to the allegations against him at the initial hearing were not given in accordance with IC 31-32- 5-1, and we must reverse his adjudication.
NFP civil opinions today (2):
Michael T. Lewis v. Nicole (Lewis) Sparks (NFP) - "The trial court imputed income to Father based upon his credentials and past earnings without regard to current prevailing opportunities. As such, the trial court applied an incorrect legal standard to the properly found fact of unemployment. Because the trial court abused its discretion in imputing income to Father, we reverse the order on child support and remand to the trial court with instructions to recalculate Father’s gross income for child support purposes. Affirmed in part, reversed in part, and remanded. "
In Mike Halstead v. Gilbert Bridgewater d/b/a Gil's Machine Service (NFP), a 9-page decision with 3 opinions, Judge Mathias writes:
Mike Halstead (“Halstead”) filed a complaint in Marion Superior Court against Gilbert Bridgewater d/b/a Gil’s Machine Service (“Bridgewater”) alleging that Bridgewater breached his oral contract with Halstead. The trial court entered a judgment in favor of Halstead, but subsequently granted Bridgewater’s motion to correct error after concluding that the parties never had a meeting of the minds. Halstead appeals and argues that the trial court abused its discretion when it granted Bridgewater’s motion to correct error. We reverse and remand for proceedings consistent with this opinion. * * *NFP criminal opinions today (5):
This testimony establishes that the parties entered into a contract for the restoration of the Chevelle. The parties agreed that Halstead would pay $12,000 to Bridgewater for labor and that Halstead would purchase and provide to Bridgewater the parts required for the restoration. Accordingly, we conclude that the trial court abused its discretion when it granted Bridgewater’s motion to correct error and determined there was no “meeting of the minds.” We therefore reverse the trial court’s judgment granting the motion to correct error and direct the trial court to reinstate its January 10, 2008 judgment.
Reversed and remanded for proceedings consistent with this opinion.
BROWN, J., concurs in result with opinion. [which begins] I concur in the result but write separately to state my belief that the correct resolution of this case by the trial court would have been to award Halstead the benefit of his bargain, which is a fully restored car for $18,000. As the dissent notes, the car, and all parts purchased by Halstead or the cost of the parts, should be returned to Halstead.
BAKER, C.J., dissents with opinion. [which begins] Although I am compelled to concur with the majority’s conclusion that there was, in fact, a meeting of the minds between Halstead and Bridgewater, I respectfully dissent from the disposition of the case. It is undisputed that Halstead paid Bridgewater $12,500 for labor and that Halstead spent an additional $1,166 on parts for the Chevelle. Tr. p. 24, 26-28. Therefore, the trial court’s original judgment—which is reinstated as a result of the reversal of its ruling on the motion to correct error—awarding Halstead the Chevelle and the full contract price of $18,000 would result in a windfall to Halstead.
Ind. Decisions - 7th Circuit issues on Indiana decision today
In Golden Years Homestead v. C. Angela Buckland (SD Ind., Judge Barker), a 13-page opinion, Judge Stykes summarizes:
Golden Years Homestead, Inc., operates a licensed nursing facility in Fort Wayne, Indiana, and participates in the Federal Medicaid program. As such, it is subject to periodic inspections, or “surveys,” by the Indiana State Department of Health. Golden Years underwent a series of surveys in 2000 and was cited for numerous Medicaid-participation and state- licensing violations. All but one of the citations, however, were dismissed after administrative and judicial review. Golden Years then brought this suit against the inspectors alleging violations of its Fourth and Fourteenth Amendment rights and also asserting state-law claims for malicious prosecution and abuse of process. The district court concluded that Golden Years’ evidence was insufficient as a matter of law on all claims and entered summary judgment for the inspectors.
On appeal, Golden Years challenges only the dismissal of its state-law claims, raising both procedural and sub- stantive arguments. As to procedure, Golden Years argues that because the inspectors never asked for a merits dismissal of the malicious-prosecution and abuse- of-process claims, the district court’s order amounted to an improper sua sponte entry of summary judgment on these claims. As to substance, Golden Years contends that its evidence of unprofessional and abusive conduct by the inspectors, considered together with the fact that only one of the original citations survived admin- istrative and judicial review, raised a material issue of fact on the state-law claims.
We reject both arguments and affirm. The inspectors sought summary judgment on all claims, and although they focused most of their argument on certain affirmative defenses and the sufficiency of the proof on the federal claims, they did assert that Golden Years’ evidence raised no material issues of fact as a general matter. As importantly, Golden Years responded on the substance of the state-law claims in its brief in opposition. The deficiency that led the court to dismiss the federal claims—lack of sufficient evidence that the inspectors behaved unreasonably or harbored any improper mo- tive—also required dismissal of the state-law claims. Accordingly, the district court’s order was not an improper sua sponte summary judgment on the state- law claims. Summary judgment was also appropriate on the merits; the state-law claims require proof of malice or ulterior motive, and there was insufficient evidence of that here.
Law - "After Prison, Few Places for Sex Offenders to Live "
"After Prison, Few Places for Sex Offenders to Live" should not be news to anyone who has been following the entries in the ILB. It is the headline to a story today in the WSJ, reported by Stephanie Chen. A quote from the lengthy story:
Laws cracking down on sex offenders enjoy broad public support across the U.S. All states require offenders to report to law enforcement, but Georgia's statute is considered to be among the toughest such laws in the U.S. for its living restrictions and sentences. The law has set off messy conflicts between politicians and others who argue sexual criminals should be aggressively tracked and isolated and those who say lawbreakers -- especially juveniles and nonviolent offenders -- deserve a second chance.Here is a list of ILB entries on sex offender residency.
Among the most vocal critics of the laws are police. Some sheriffs say the crackdown on sex offenders forces them to divert substantial resources from investigating active criminals to monitoring and tracking offenders who aren't threatening. Enforcing the additional restrictions from the 2006 law cost sheriffs' offices about $5 million in 2007, says the Georgia Sheriffs' Association.
Some states also object to a recent federal law requiring states to impose strict standards for registering sex offenders, arguing it's too costly and no more effective than their own state laws.
"Oh, my God, it's overwhelming," says Capt. Ronald Applin, who works in the Fulton County sheriff's warrant-service division that tracks down anyone deemed too close to children for comfort. Monitoring more than 1,500 sex offenders in the state's most-populous county requires four deputies full time, he says.
It's not clear whether the laws have had any effect on the frequency of sexual offenses in Georgia. Only 90 of the 15,800 people listed as sex offenders are classified by law-enforcement officials as dangerous "predators," which the state defines as someone who is at risk of perpetrating a future sexual offense. The number of rapes in the state increased slightly between 2006 and 2007, but the laws haven't been in effect long enough to establish clear statistical patterns, experts say.
Law-enforcement officials say the law has forced many sex offenders to move. According to an analysis by The Wall Street Journal of records compiled by the Georgia Bureau of Investigation, more than 8,400 of the sex offenders on the registry, or 68%, moved between June 2006 and November 2008 -- far higher than in previous periods. More than a hundred left the state entirely.
Still hanging over those listed on the Georgia registry is a provision approved as part of the 2006 law forbidding them from living within 1,000 feet of a school bus stop. But enforcement of that requirement was stayed by a federal judge in response to a lawsuit filed by several sex offenders. If the measure ultimately goes into effect, the vast majority of Georgia would be legally uninhabitable to anyone on the registry, according to sheriffs across the state.
Environment - Still more on: "CAFO regulation proposals will return to Indiana General Assembly in eight bills"
Updating this ILB entry from Feb. 11th, where Richmond Pallidium-Item correspondent Pam Tharp reported:
Ag committee Chairman Phil Pflum, D-Milton, said the committee didn't vote on the bills because several questions were raised. The committee will hear limited testimony and will vote on House Bill 1074 and 1075 on Feb. 17, he said.Ms. Tharp reports today:
Two House bills that would regulate mega livestock farms will move to the 100-member Indiana House for consideration next week.
The House agriculture committee on Tuesday passed House bills 1074 and 1075. Proponents and opponents of the bills have less than a week to bend legislators one way or the other on the issues because Wednesday is the last day for legislation to be passed from its chamber of origin.
House Bill 1074 allows the Indiana Department of Environmental Management to consider "good character" issues such as prior environmental violations by applicants who want to operate concentrated animal feeding operations (CAFOs).
House Bill 1075 establishes a two-mile setback from state parks and reservoirs for new confined feeding operations, CAFOs and manure application.
"It's going to be a challenge to get (the setback bill) out of the whole House," said state Rep. Phil Pflum, D- Milton, who chairs the House ag committee. "I'm sure we'll get an up-or-down vote on it.
"I think if we could pass it with bipartisan support in the House, we'd have a better chance in the Senate. This is not a Democrat or Republican issue."
The "good character" bill passed out of the ag committee on an 11-0 vote. The number of years to be reviewed for good character was amended by the committee from five to three, said state Rep. Tom Knollman, R-Liberty, an ag committee member.
The setback bill passed by a narrow 6-5 margin, with Knollman voting for the bill. Knollman said he still has reservations but voted for it to move it forward.
Setbacks might be trimmed, but there is a need to protect state lakes from pollution, he said.
Environment - More on: Impact of IDEM enforcement changes?
Updating this ILB entry from earlier today, the Indianapolis Star today is channeling a lengthy USA Today story by Rick Callahan of the AP that gives the background leading up to today's meeting between the federal and state environmental officials.
Ind. Decisions - Supreme Court issues one opinion this morning, reversing COA's reading of Criminal Rule 4(C)
In Robert Jeffrey Pelley v. State, an 18-page, 5-0 opinion issued today, with the Court granting transfer with opinion, Justice Boehm writes:
Robert Jeffrey Pelley appeals his convictions for the murders of his father, stepmother, and two stepsisters. We affirm Pelley‘s convictions. We hold that the Criminal Rule 4(C) period does not include the time for the State‘s interlocutory appeal when trial court proceedings have been stayed. We also hold that the evidence was sufficient to support the convictions, and the trial court did not err in its challenged evidentiary rulings or in denying Pelley‘s motion for a special prosecutor.The ILB has had a long list of entries on this case, access them here.
In 2007, a jury found Pelley guilty of the 1989 murders of his father, stepmother, and two stepsisters. The convictions were based on circumstantial evidence supporting the State‘s theory that Pelley, who had been grounded from events connected to his high school senior prom, killed his father in order to attend those activities with his girlfriend, and killed his step-mother and stepsisters because they were present when he killed his father. Pelley was sentenced to consecutive forty-year sentences, for an aggregate sentence of one hundred sixty years. Pelley appealed his convictions, raising four claimed errors:
I. Denial of his motion for discharge under Criminal Rule 4(C) because he was not tried within one year after his arrest due to the State‘s interlocutory appeal;
II. Insufficient evidence to support the convictions;
III. Admission of certain hearsay statements and exclusion of evidence regarding a third-party motive and the prosecutor‘s delay in bringing charges; and
IV. Denial of Pelley‘s petition for a special prosecutor.
The Court of Appeals reversed Pelley‘s convictions on the first issue and therefore did not address the remaining three. Pelley v. State, 883 N.E.2d 874, 876 (Ind. Ct. App. 2008). [See 4/8/08 ILB summary here] We granted transfer and affirm the trial court on all four issues. We set out the facts and procedural steps relevant to each issue in the following sections.
Law - More on: "Forensics Rife With 'Serious Problems'"
The report calls into question the scientific merit of virtually every commonly used forensic method, including analysis of fingerprints, hair, fibers, blood spatters, ballistics and arson. Only DNA, which the panel said had benefited from rigorous scientific scrutiny and peer review outside of the forensics discipline, escaped significant criticism.
“The fact is that many forensic tests, such as those used to infer the source of tooth marks and bite marks, have never been exposed to stringent scientific scrutiny,” the report said. The report highlights crime laboratory scandals involving hundreds of tainted cases handled by police agencies in Michigan, Texas and West Virginia, and by the Federal Bureau of Investigation. At least 10 wrongly convicted men have been exonerated as a result of those laboratory investigations, and the cases of hundreds of other people convicted with the help of those facilities are under review.
The panel also found that most of the nation is served by death investigation offices that lack accreditation. It cited an 18-year-old high school student in Indiana who was recently elected deputy coroner after a short training course.
The academy said that in addition, judges and lawyers generally lacked the scientific expertise necessary to “comprehend and evaluate forensic evidence in an informed manner.”
Ind. Law - "Independent official would review deaths of children in custody"
Mary Beth Schneider reports in the Indianapolis Star in a story that begins:
An Indiana House panel on Wednesday passed a bill creating an independent ombudsman to review the deaths of children in the state's custody as well as counterbalance the state's power to take a child from its family.Also from the story:
To the emotional family members who testified Wednesday before the House Family, Children and Human Affairs Committee, House Bill 1602 is long overdue.
Their frustration and, in a couple of cases, their tears helped persuade the committee to vote 11-0 to send the bill to the full House for debate and a vote.
The move to create a Department of Child Services ombudsman in Indiana gained momentum in particular because of the deaths of some children, including Destiny Linden, a 12-week-old Indianapolis girl who died in April 2008 while in a Marion County foster home.
An ombudsman would review such cases, focusing on whether DCS did everything it should have to help and protect a child in the state's care, as well as the complaints of people who deal with DCS. The ombudsman also could pursue appeals of DCS actions and see any and all records regardless of privacy strictures.
Advocates say an ombudsman is needed because parents often fear reprisal if they bring complaints about the DCS to the agency.
James Payne, the former juvenile court judge who directs DCS, told the committee that "we are not opposed to the bill."Once the committee report is filed, the bill will become eligible for second reading. But, as noted in this ILB entry yesterday, time is short for first house action.
But he said the agency already is "one of the most overseen agencies in government." Its goal, he said, is not to remove children from their homes unless absolutely necessary.
Rep. Vanessa Summers, the Indianapolis Democrat who is chairwoman of the committee, told Payne that despite all the checks and balances Payne said existed, the testimony of the families indicated they might not be enough.
"There is something going on if we have that many people with issues," she said.
According to data compiled by the National Coalition for Child Protection Reform, Indiana removed children from their families in 2007 at a rate of 4.86 per 1,000 children, more than 20 percent more than the national average of 3.93.
Rep. Charlie Brown, the Gary Democrat who authored the bill, noted that 33 other states have such ombudsmen.
Environment - Impact of IDEM enforcement changes?
Today US EPA Region 5 officials visit the Indiana Department of Environmental Management to discuss, among other things, changes in IDEM enforcement policy, which appear to have been phasing in over the past few months. Here is a story from yesterday's Gary Post-Tribune about the visit.
The changes included abolishing the Office of Enforcement and dividing the responsibility between the Offices of Air, Water, and Waste. Plus, changes to the enforcement policy itself. According to the P-T, "IDEM's proposed enforcement policy would make IDEM less likely to enforce against a facility for permit violations -- unless the violation causes actual harm to someone's health or the environment."
Even with this knowledge, I was astonished this week when I obtained the list of Notices of Violation and Agreed Orders issued by IDEM for the month of January, 2009. First, instead of a combined list from the now-defunct Enforcement Office, I received only a list from the Air Office. I don't know if this means the other two offices did nothing in January, or if they have just stopped issuing information to the public.
Second, the Air list for January 2009 consists of 4 Notices of Violation, and 1 Agreed Order. Contrast this to January 2008 - 12 NOVs, 8 AOs; January 2007 - 9 NOVs, 8 AOs.
For background, start with this ILB entry from Jan. 22nd, headed "Environment - U.S. EPA raises concerns about IDEM changes."
Wednesday, February 18, 2009
Ind. Decision - 7th Circuit rules in Illinois 2nd amendment case
[Jackson] contends that he is innocent of the charge [possessing firearms in furtherance of a drug-trafficking offense.] because he possessed the guns for his protection—and District of Columbia v. Heller, 128 S. Ct. 2783 (2008), holds that the Constitution’s second amendment entitles people to have handguns in the home for self-protection.
The Court said in Heller that the Constitution entitles citizens to keep and bear arms for the purpose of lawful self-protection, not for all self-protection. Jackson was distributing illegal drugs (cocaine and unlicensed dextromethorphan hydrobromide tablets) out of his home. The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should sup- pliers, customers, or the police threaten a dealer’s stash. Jackson says that he lived in a dangerous neighborhood and wanted to protect himself from burglars and other marauders. That may be so, but his decision to operate an illegal home business also matters. Suppose a federal statute said: “Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there.” Such a statute would be valid, as Jackson’s lawyer conceded. And if Congress may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns. The state- ments “if you have a gun, you can’t sell cocaine” and “if you sell cocaine, you can’t have a gun” are identical.
Law - "Forensics Rife With 'Serious Problems'"
Nell Greenfieldboyce reports for NPR - access it here. A quote:
The new report from the National Academy of Sciences' National Research Council is a sweeping critique of forensic science and the way evidence is presented by analysts in the courtroom. The long-awaited report — expected to be highly influential — describes numerous problems with forensic evidence.Here is a press release on the report, and here is the document itself.
The National Academy of Sciences formed its committee to assess the state of forensic science back in 2006, at the request of Congress. The report acknowledges that advances in some forsenic methods have helped law enforcement officials identify perpetrators in many crimes that would have previously gone unsolved. But at the same time, testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.
The committee looked at many different kinds of evidence—everything from hair to bloodstain patterns to fingerprints. Since the development of highly precise DNA testing in recent years, the scientific basis behind many older forensic methods has come into question.
The committee found there isn't enough research behind many forensic techniques to show how accurate and reliable they are.
It also says forensic labs are underfunded and understaffed, and there's no mandatory certification to ensure quality.
It says forensic analysts' court testimony commonly refers to evidence being a "match" or "consistent with" a suspect, even though no forensic method except for DNA analysis "has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source."
It notes that forensic analysts commonly fail to acknowledge uncertainty when describing their findings.
"The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity," says the report. "This is a serious problem."
And the "case-by-case" approach of courtrooms is not the place to address the systemic problems with forsenic standards, according to National Research Council committee co-chair Harry T. Edwards, senior circuit judge and chief judge emeritus of the U.S. Court of Appeals for the District of Columbia Circuit. In a statement accompanying the report, Edwards wrote that the "adversarial system used in the courts to determine the admissibility of forensic science evidence is often inadequate to the task."
The National Research Council report recommends that a new, independent National Institute of Forensic Science set a research agenda, enforce standards, and push for improvements.
Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)
For publication opinions today (2):
In Daniel E. Wilkins v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
Daniel E. Wilkins was convicted of robbery, criminal confinement, and unlawful possession of a firearm by a serious violent felon, all class B felonies. On appeal, Wilkins raises the following issue: whether the trial court violated his right to a speedy trial when it delayed his jury trial on a finding of court congestion. We affirm. * * *In Bryant Dunn v. State of Indiana, a 4-page opinion, Judge Vaidik writes:
In the present case, Wilkins did not object when the trial court reset his trial for February 12, 2008, a date outside the Criminal Rule 4(B) seventy day time period. In fact, the prosecutor and defense attorney both chose the date to avoid future conflicts. Therefore, we conclude that Wilkins acquiesced to the trial setting outside of the seventy-day requirements and thereby abandoned his request for an early trial.
Waiver notwithstanding, Wilkins’s appeal fails because he has not demonstrated that the trial court erred in delaying his trial due to court congestion. A trial court’s finding of congestion is presumed valid. * * *
Relying on Bowers v. State, 717 N.E.2d 242, 245 (Ind. Ct. App. 1999), Wilkins contends that Kyles’s earlier request for a speedy trial was insufficient to confer priority status.4 Wilkins’s reliance on Bowers is misplaced. * * * We specifically declined to impose any requirement that a trial court “assess and determine its calendar to make sure that when a speedy trial defendant’s speedy trial is continued, that defendant has priority over another speedy trial whose trial had been previously scheduled on that date.”
Finally, Wilkins contends that his trial should have been given priority over the trial of Kyles’s because of the expectations of the parties at the October 11, 2007, pretrial conference that Wilkins’s trial would go forward instead of Kyles’s. Wilkins argues that he relied on the statements made at the pretrial conference to his detriment because, had he known that his trial was not going to take place on November 7, 2007, he would have requested another trial date within the seventy-day period. However, defense counsel and the prosecutor chose to reschedule the trial date for February 12, 2008, because that was the first date they were both available. Affirmed.
Bryant Dunn appeals his consecutive sentences totaling three years with one year suspended for three Class A misdemeanors. Specifically, he contends that IC 35-50-1-2 limits his sentence to one and one-half years, the advisory sentence for a Class D felony. Because IC 35-50-1-2 only applies when a felony is involved and Dunn was not convicted of any felonies, we affirm his consecutive sentences. * * *NFP civil opinions today (1):
Here, however, Dunn only has misdemeanor convictions. As a result, neither IC 35-50-1-2 nor Purdy and its progeny act to limit Dunn’s sentence. Because Dunn cites no other statutory, constitutional, or common law restrictions on consecutive sentences for misdemeanor offenses, we affirm his sentence. Affirmed.
Sachs & Hess, P.C. and Robert M. Hess v. Layer, Tanzillo, Stassin & Babcock, P.C., et al. (NFP) - Four attorneys who had been members of the firm of Sachs & Hess, P.C. left to form LTSB. Approximately 550 cases, of which approximately 292 were contingency-fee cases, transferred from S&H to LTSB as a result of the quartet‟s leaving. In a 10-page opinion, Judge Bradford writes:
Appellant/Plaintiff/Counter Defendant/Third-Party Defendant Sachs & Hess, P.C. (“S&H”), appeals from the denial of its request for a preliminary injunction against Appellees/Defendants/Counter Claimants/Third-Party Plaintiffs Layer, Tanzillo, Stassin & Babcock, P.C. (“LTSB”), Ronald F. Layer, Andrew R. Tanzillo, Larry D. Stassin, and Michael D. Babcock (collectively, “Appellees”). Appellees also request that we award them appellate attorneys' fees. We affirm the trial court and deny Appellees' request for appellate attorneys' fees.NFP criminal opinions today (2):
Ind. Courts - Indiana Supreme Court Hires Director of Appellate Court Technology
A press release today announces that:
The Indiana Supreme Court has named Robert Rath as the first-ever Director of Appellate Court Technology. * * *In addition, the Indiana Court of Appeals is advertising for "a Director of Technology to provide the Court of Appeals an interface with the Indiana Supreme Court’s Director of Appellate Court Technology."
As Director of Appellate Court Technology, Rath will play a crucial role in developing a stronger vision for how the Court utilizes technology. Rath will review Court processes and identify how changing technology may improve Court functions and services. * * *
The National Center for State Courts (NCSC) recommended Indiana hire an Appellate Court IT Director. * * *
Rath earned his law degree from Indiana University School of Law – Indianapolis and business degrees from Indiana University Kelley School of Business – Bloomington and Indiana Wesleyan University.
The ILB intends to dig out its old wish lists of improvements the Courts can make for the beneifit of the legal community and the general public. First on the list may be RSS feeds. Second may be a user-friendly appellate docket. Thoughts?
Ind. Courts - More on: "Charges filed against Senior Judge Walter P. Chapala"
INDIANAPOLIS - A misconduct case involving a La Porte County judge has moved forward.
La Porte Senior Judge Walter Chapala has been called to a formal judiciary hearing March 12 and 13 by the Indiana Commission on Judicial Qualifications.
The commission charged Chapala with five counts of judicial misconduct in a legal notice filed Oct. 29.
Ind. Law - Deadlines for legislative action in first house approaching
Next Wednesday, Feb. 25th, is the last day for 3rd reading of Senate bills in the Senate and of House bills in the House.
That makes next Tuesday, Feb. 24th, the last day for 2nd readings.
Ind. Law - "Senate gives 'green light' to red-light cameras"
Deanna Martin of the AP reports today:
INDIANAPOLIS | Drivers may want to think twice about blowing through red lights.Here is a long list of earlier ILB entries on red light cameras.
The Republican-controlled Indiana Senate passed a bill 28-22 Tuesday to allow cities and towns to install cameras at intersections to catch drivers running red lights. The fine would be no more than $100.
Supporters of red-light cameras, which would photograph rear license plates, say the devices can help save lives while allowing police officers to focus on more serious criminal behavior.
"It's a safety factor," said Sen. Jim Arnold, D-LaPorte.
Opponents of the cameras say they are a government invasion of privacy. They said the cameras may prevent some accidents but can actually cause more rear-end collisions as drivers slam on the brakes to avoid the photographed violation. Other critics say the cameras could become a "golden goose" for cash-strapped cities and towns.
"These cameras make a lot of money," said Sen. Tim Skinner, D-Terre Haute. "I can guarantee you there are going to be a lot of tickets." * * *
Several cities have been lobbying for the cameras.
The Hammond City Council approved an ordinance last year that would have allowed the city to install cameras on traffic signals at six intersections. But the attorney general's office said that cities and towns cannot install red light cameras unless the General Assembly passes a law allowing them to do so.
Other cities that have shown interest in red-light cameras include Fort Wayne, Lafayette, West Lafayette and Gary.
Lafayette police ran a one-day test of a red-light camera last year and found 135 vehicles in some type of violation. That number is significant considering police there issued 368 tickets for red-light violations over 16 months from January 2007 to June 2008.
The bill is SB 389. SECTION 22 adds a new chapter IC 9-21-3.6, the "Traffic Infraction Detection System Program." The terms "red light camera" and the word "camera" are not used in the bill.
Tuesday, February 17, 2009
Ind. Court - Proposed constitutiuonal amendment to judicial article set to be heard in House committee [Updated]
HJR 9, a proposed constitutional amendment introduced by Rep. Craig Fry, which was originally assigned to the Committee on Courts (chaired by Rep. Linda Lawson), was reassigned to the Committtee on Government and Regulatory Reform (chaired by Rep. John Bartlett) on Feb. 12th. Here is the digest:
Selection of supreme court justices. Provides that the Indiana supreme court consists of five members, three of whom are elected by the voters of districts and two of whom are elected by all the voters of Indiana. Provides that the general assembly may by law provide for transition from a system of appointed and retained justices to a system for election of justices. Provides that the governor fills a vacancy on the supreme court from the judges of the court of appeals and the individual who fills the vacancy serves the remainder of the unexpired term of the justice the individual succeeds. Makes technical changes. This proposed amendment has not been previously agreed to by a general assembly.The resolution has been added to a long list of proposals to be heard by the Gov. Reform Committee today, Feb. 17th, upon adjournment.
Rep. Fry is also the author of the HB 1491, which would require the nonpartisan election of superior court judges in St. Joseph County, and which was passed by the House last week, 88-3.
[Updated 2/18/09] HJR 9 failed to receive the votes needed to pass it out of committee yesterday, and so presumably is dead for now.
Courts - Massachusetts' top judge says courts are in crisis
From today's Boston Globe, a story by Megan Woolhouse. Some quotes:
The economic downturn could have a devastating impact on the American justice system as courts are forced to lay off employees and cut down on court hours, Massachusetts' top judge said yesterday.
"I shall be blunt: Our state courts are in crisis," Supreme Judicial Court Chief Justice Margaret H. Marshall told members of the American Bar Association at its midyear meeting at the Hynes Veterans Memorial Convention Center. "A perfect storm of circumstances threatens much of what we know, or think we know, about our American system of justice."
Marshall said courts across the country are reviewing their budgets and making "painful choices."
New Hampshire's judicial branch will halt civil and criminal jury trials for a month to save on per diem payments to jurors. It will also postpone filling seven of the state's 59 vacant judgeships this year. Budget cuts in Florida have left 280 court employees without jobs and more layoffs are expected. In Maine, the courts have loosened security, no longer staffing magnetic security machine checkpoints at local courthouses.
Ind. Decisions - Supreme Court decides one today
In Bruce Wayne St. Clair, Jr. v. State of Indiana, an 8-page, 5-0 opinion, Chief Justice Shepard writes:
Appellant Bruce Wayne St. Clair, Jr. pled guilty under a plea agreement that recommended a three-year sentence. The court accepted the plea, approved the agreement, and imposed sentence in accordance with it.
St. Clair now asserts that because the plea agreement “recommended” three years, the trial court was authorized to impose any lawful sentence, a sentence subject to further consideration on direct appeal. We hold that it was not. Once the trial court approved the agreement, it was bound to impose the sentence specified in the agreement. There was therefore nothing to appeal.
Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)
For publication opinions today (3):
Susan Knoebel v. Clark County Superior Court No. 1, a 10-page opinion, involves the proper salary for a probation officer who was previously chief probation officer.
In the Paternity of L.F.C., J.C. v. L.F. involves the the interest amount and applicable start dates on the court ordered child support and medical expenses to be paid to mother.
In Town of Cloverdale v. Scott Renner, et al. , a 9-page opinion, CJ Baker writes:
Appellant-defendant Town of Cloverdale (The Town) appeals the trial court's order of disannexation entered in favor of appellees-plaintiffs Scott Renner, John Huber, Ann Manning, and Judy Fox (collectively, the appellees). The Town makes a number of arguments, one of which is dispositive; namely, that the appellees' complaint was untimely filed. Finding that the appellees filed their complaint years after the statute of limitations had run and are therefore not entitled to the requested relief of disannexation, we reverse and remand with instructions to enter final judgment in the Town's favor. * * *NFP civil opinions today (5):
Unfortunately for the appellees, however, “the doctrine of continuing wrong does not prevent the statute of limitations from beginning to run when the plaintiff learns of facts that should lead to the discovery of his cause of action, even if his relationship with the tortfeasor continues beyond that point.” * * *
Inasmuch as the one-year statute of limitations had long since elapsed when the appellees filed their complaint, the trial court erroneously entered judgment in their favor. Given that the legislature has decided that the appellees' claims are time-barred, we need not and will not consider the substance of their arguments.
The judgment of the trial court is reversed and remanded with instructions to enter final judgment in the Town's favor.
Thomas M. Hill v. Sharon Hill (NFP) - "Finding that the trial court erred in its method of calculating the parties’ retirement accounts and in granting Sharon a credit for a debt on a vehicle that Thomas and an insurance company had paid, we affirm in part, reverse in part, and remand with instructions that the trial court redetermine the property division. On remand, the trial court shall reassign the values of the parties’ pension accounts based upon the date of separation and eliminate the credit that was granted to Sharon with regard to payments that were made on the vehicle. "
In Randyl A. McCauley, et al. v. Dale W. DuKate (NFP), an 18-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court erred in permanently enjoining the McCauleys from entering onto the easement described in the quitclaim deed and by ordering them to remove the water line and meter from DuKate's property. We remand this cause to the trial court with instructions to amend its order accordingly. However, we affirm the trial court's judgment in favor of the McCauleys on DuKate's claim of trespass. Affirmed in part, reversed in part, and remanded with instructions.In the Matter of A.P., J.P., M.M. (NFP)
BRADFORD, J., concurs.
BAILEY, J., concurs in part and dissents in part with separate opinion. [that concludes] Weighing the respective harms, the McCauleys would bear the cost of removing the line and replacing it somewhere else. DuKate, however, would face allowing onto his land someone with whom he had stern disagreements. The public interest is best served by separating the feuding parties.
Based upon this reasoning, I conclude that the trial court's grant of injunctive relief was intended to separate the feuding parties, to the degree possible, and therefore was not an abuse of its discretion. “[T]he foundation of the social pact is property, and its first condition that everyone be maintained in the peaceful enjoyment of what belongs to him.” [cite omitted] I would affirm the trial court's order requiring the McCauleys to remove the water line and meter.
Eric D. Smith v. William K. Wilson (NFP) - "Because Smith’s petition did not establish all of the elements of a claim for educational credit time, the trial court properly dismissed it. We affirm. "
Norwood Regional Water & Sewer District v. Fair Oak Farm Golf Properties, LLC (NFP) - "Norwood Regional Water and Sewer District (“the District”) appeals the trial court‟s order awarding damages to Fair Oak Farm Golf Properties, LLC (“Fair Oak”) for the repair of Fair Oak‟s underground irrigation system. We affirm."
NFP criminal opinions today (10):
Ind. Law - "Police want to add DNA from more people to database"
Jon Murray of the Indianapolis Star has a long story today looking at legislation under consideration to expand the collection of DNA samples. Read it in conjunction with Niki Kelly's story from Feb. 1st on Senate Bill 24 and this ILB entry from Feb. 5th on a similar bill in the State of Washington and its costs.
Some quotes from today's story:
The Judiciary Committee voted 7-2 last month to advance a bill authored by Sen. Joe Zakas, R-Granger, that would collect DNA samples from felony arrestees beginning July 1. [SB 24]A side-bar points out:
But the debate could get cut short in the Senate Appropriations Committee, which examines ways to pay for proposals.
The estimated price tag -- $2.5 million to $3.5 million -- could be a roadblock in a session dominated by a tight budget. The appropriations chairman, Sen. Luke Kenley, said the bill will get a hearing this week but likely will be held up while the committee considers spending priorities.
"My goal at this point is to keep the concept moving forward, regardless of the funding," Zakas said.
One idea to cover the bill's cost is to add $9 to a $2 DNA sample processing fee charged in criminal court cases.
Sen. James Merritt, R-Indianapolis, has authored an even more expansive bill that would target all arrestees, not just those picked up on felonies. Largely because of a cost estimated at up to $6.6 million, Merritt said it won't move forward this year. [SB 237]
Zakas has had more success with two less-costly DNA-related bills that are moving on to the House after passing the Senate last week.
One, passed 41-9, would begin collection of DNA from juveniles found to be delinquent for burglary, violent crimes and sex offenses. The proposal has drawn objections from some who see a conflict with the juvenile system's goal of rehabilitation. [SB 3]
The other bill, passed 44-6, would let the Indiana State Police superintendent authorize an investigation of blood relatives if a person's DNA database profile doesn't match evidence from a crime scene but is close enough to cast suspicion on a family member. [SB 4]
If Zakas' felony arrestees bill becomes law, the state would collect and process nearly 73,000 more samples each year than it does now, the Legislative Services Agency estimated.
Asplen and other supporters of the idea cite cases in which collecting a serial criminal's DNA at an arrest would have prevented crimes and untold investigative and court costs.
Concerns about expungement
Zakas' bill drew objections from some Judiciary Committee members because its expungement provisions aren't automatic. The bill requires cleared arrestees to submit a written request and provide documentation before their profiles can be deleted.
Four in 10 arrests don't lead to charges or a conviction, national statistics show, and expungement requests from everyone eligible could overwhelm State Police with 100 or more a day.
One key supporter of arrestee DNA collection, Marion County Prosecutor Carl Brizzi, said he disagreed with offering expungement because having more records gives investigators a better chance of finding a match.
Judiciary Committee member Sen. Greg Taylor, D-Indianapolis, said he voted against Zakas' bill because neither current nor proposed rules allow equal access to the database for people seeking to prove their innocence.
Brizzi and others say a DNA profile is just another fingerprint and federal privacy laws limit how it can be used.
So far, few courts have waded into the debate on DNA collection from arrestees.
Larry Landis, executive director of the Indiana Public Defender Council, said he worried the stored samples could provide much more personal information as science develops.
"It has a great potential for misuse that people don't recognize, just like getting somebody's bank accounts and passwords," Landis said. "Fingerprints don't tell that much about you."
In Indiana, samples are handled by the State Police's laboratory division, which uses a contractor, Indianapolis-based Strand Analytical Laboratories, to analyze them. Strand develops DNA profiles that the State Police load into state and federal databases; the State Police keep one DNA sample in storage for each offender. Each profile contains information about 13 locations in the person's DNA.Here is a story that appears to be based on a press release from May 10, 2006:
Strand Analytical Laboratories, the DNA testing company cofounded by Scott C. Newman and internationally knowned forensic scientist Dr. Mohammad A. Tahir, is preparing to expand its operations, just 10 months after opening in July 2005.
The Metropolitan Development Commission of Indianapolis recently granted a tax abatement for Strand on the planned expansion to its laboratory at 5770 Decatur Blvd. The expansion will create 52 new high-paying jobs by December 2010 to add to the existing 11 positions, and it represents a capital investment of nearly $2 million for the company.
“We’re very excited that it’s already time to grow at Strand Labs in Indianapolis. It confirms what we thought about the demand for high quality DNA identification services and our ability to provide them here,” said Newman, Strand’s president & CEO.
Newman co-founded Strand Labs with Dr. Mohammad A. Tahir, a leading DNA expert. Dr. Tahir was a member of the FBI Director’s DNA Advisory Board (DAB) that has established standards for forensic DNA analysis and the convicted offender database (CODIS) in the United States.
In January, Strand was chosen to provide DNA identification training to Pakistani scientists to aid in the fight against crime, including acts of terrorism, in that country.
The state of Indiana, through the Indiana Economic Development Corporation (IEDC), has offered an incentive package that will assist Strand Analytical Laboratories with its expansion. The IEDC-offered incentives include up to $81,000 in training grants and up to $515,000 in tax credits based on anticipated employment and capital investment levels.
Property tax abatements, like the one granted to Strand, permit new or expanding companies to phase in property tax payments over time and are contingent on the creation of new jobs. Abatements are a means of assisting firms with the high cost of startup and capital investment.
In addition to forensic DNA testing, Strand also does testing for parentage and provides expert testimony in court for prosecutors and defense attorneys in criminal and parentage cases. Since its opening, Strand has been receiving cases and contracts from around the country, and has significant developing international commercial ties as well.
Ind. Decisions - Transfer list for week ending Feb. 13, 2009
There is no transfer list for the week ending Feb. 13, 2009.
Courts - More on: "Case May Alter Judge Elections Across Country "
The case of Caperton v. A. T. Massey Coal, No. 08-22, which will be argued before the SCOTUS on March 3, and about which the ILB has posted many times before, including most recently Feb. 15th, is featured today in a lengthy USA Today story by Joan Biskupic, headlined "Supreme Court case with the feel of a best seller." Some quotes:
The decade-long dispute, a reflection of the growing questions surrounding judicial elections, tests whether an elected judge's refusal to take himself off a case involving a chief financial backer is unconstitutional. * * *
A USA TODAY/Gallup Poll this month found 89% of those surveyed believe the influence of campaign contributions on judges' rulings is a problem, and 52% deem it a "major" problem. More than 90% of the 1,027 adults surveyed said judges should be removed from a case if it involves an individual or group that contributed to the judge's election campaign.
The West Virginia dispute spotlights the dramatic rise in campaign money in judicial elections. From 2000 to 2007, $168 million was spent on contested elections for states' highest courts, up from $87 million from 1990 to 1999, reports the New York-based Brennan Center for Justice, a legal group siding with Caperton.
Retired U.S. justice Sandra Day O'Connor, who often speaks about judicial independence, has referred to the caseas an example of possible courtroom bias. More than 40 groups, including the American Bar Association, have weighed in with 11 "friend of the court" briefs supporting Caperton.
Far fewer groups have lined up with Massey. However, seven states have backed Massey in a court filing and urged the justices to let states decide when their judges must disqualify themselves from a case. [ILB - the states are Alabama, Colorado, Delaware, Florida, Louisiana, Michigan, and Utah - here is their amicus curiae brief.]
Caperton's "attempt to shoehorn" differences in states' judicial policies "into an overarching federal constitutional standard makes little practical sense," the states say.
Ind. Decisions - "Court drops child molesting charge: Appeals judges allow solicitation conviction to stand in Internet sting"
A New Castle man is not guilty of attempted child molesting for traveling to Lafayette to have a sexual encounter with someone he believed was a 13-year-old girl, Indiana's higher court has ruled.From Judge Kirsch's NFP opinion Monday:
Justin W. Hicks was found guilty of two counts of attempted child molesting and five counts of child solicitation, all felonies, after a jury trial in November 2007. He was sentenced to 14 years in prison.
Hicks, now 26, appealed the convictions for attempted child molesting, arguing that the offense could not have occurred since the victim was actually Tom Davidson, a detective with the Lafayette Police Department.
The Indiana Court of Appeals agreed in a unanimous ruling issued Monday.
"Here, there was no actual child under the age of 14," Judge James Kirsch wrote. "Rather, Sgt. Davidson had assumed the online persona of a 13-year-old girl for the purposes of an Internet solicitation investigation." * * *
Hicks was one of three men arrested in late 2006 and early 2007 by detectives with the Lafayette Police Department who had been posing as teenagers on various Internet Web sites.
All three men traveled to Lafayette to meet with "teens" they chatted with online.
[O]ne issue is dispositive: whether Hicks can be convicted of attempted child molesting when the intended victim is not actually a minor. Hicks does not challenge his convictions for child solicitation. We reverse and remand with instructions. * * *See the July 11, 2008 ILB summary in the case of Matthew J. Aplin v. State of Indiana here. The ILB summary of Randy Gibbs v. State of Indiana is here, along with discussion of the effect of a denial of transfer -- whether or not it has the effect of an affirmation of the lower court opinion. There is more on Gibbs in this Jan. 4, 2009 ILB entry.
Hicks argues we must reverse his convictions for attempted child molesting because the State failed to allege or prove that an actual child existed and that the child was under fourteen years of age. We agree.
In Aplin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), reh’g denied, trans. denied, the defendant was charged with child solicitation and attempted sexual misconduct with a minor for engaging in sexual communications via the Internet with a police officer posing as a fifteen-year-old girl, arranging to meet the “girl,” and then going to the location of the meeting. We held that for the offense of attempted sexual misconduct with a minor, the intended victim must be a minor. Id. at 884-85. We noted that the appropriate charge in those circumstances was child solicitation, where “the State is not required to prove the actual age of the victim but may prove the solicitor’s belief that the solicitee is a minor.” Id.
More recently, in Gibbs v. State, No. 49A02-0712-CR-1017, 2008 WL 5413081, at *1 (Ind. Ct. App. Dec. 31, 2008), following the holding in Aplin, we held that a defendant cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors where the intended victim is not actually a minor. There, as here, the State argued that Aplin was incorrectly decided. However, as noted by this court in Gibbs, our Supreme Court denied transfer in Aplin. Id. at *4.
We believe that Aplin was correctly decided and guides our decision here.
Monday, February 16, 2009
Law - "Kentucky agencies must give more than Web addresses"
From the Lexington Herald-Leader. this brief AP story this afternoon:
And in the State of Indiana, ALL of the state's rules, many thousands of documents that are equal in importance to state statutes, and indeed have the force and effect of law, are available only online -- there are no printed copies, no permanent published copies, at all.
FRANKFORT, Ky. -- The Kentucky attorney general's office says a school district violated state law by not providing a hard copy of a policies and procedures manual to parents who requested it.
Assistant Attorney General Amye L. Bensenhaver said in an opinion released Monday that the Graves County school district improperly referred parents Tommy and Sharon Morefield to a Web site instead of providing a copy of the manual. Bensenhaver said that was a clear violation of state law.
Bensenhaver said some people may not have computers or the skills to download the requested records electronically.
School district attorney David Hargrove said Monday that officials would ensure the Morefields get the material they requested.
Courts - "Is the Supreme Court About to Kill Off the Exclusionary Rule? "
An editorial in the NY Times today, signed by Adam Cohen, begins:
In 1957, the Cleveland police showed up at Dollree Mapp’s home looking for a bombing suspect. Ms. Mapp would not let them in without a search warrant, but they entered anyway. The police did not find the bomber, but they came across a trunk containing “lewd and lascivious” books and pictures.
Ms. Mapp was convicted of possessing obscene materials, even though the evidence was taken without a warrant. She was tried in state court, like the overwhelming majority of criminal defendants. So it did her no good that federal courts had applied the so-called “exclusionary rule” since 1914 to bar the use of illegally seized evidence.
In 1961, in Mapp v. Ohio, the Supreme Court reversed Ms. Mapp’s conviction and adopted the exclusionary rule as a national standard. The court acknowledged that the rule might let some criminals go free, but it underscored that it was more important to compel the nation’s police forces to obey the law.
The court carved out exceptions over the years, but the basic rule laid down in Mapp has endured for nearly five decades. Now, Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule in a more fundamental way. It’s been a longstanding interest of Mr. Roberts’s. As a young Reagan administration lawyer, he worked on what he described in a memo as a “campaign to amend or abolish” the rule.
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Jeff Perkins, et al. v. James R. Brown, an 8-page opinion, Judge Kirsch writes:
This appeal originates from a complaint for declaratory relief, accounting, and dissolution of Kessler Advisor, LLC (“Kessler”), a limited liability company (“LLC”) owned by Jeff Perkins and James R. Brown. Kessler was dissolved by stipulation prior to the trial. Perkins appeals the trial court’s judgment in favor of Brown in the amount of $155,175.84, representing fifty percent of the net profits and retained earnings of Kessler. He raises two issues on appeal, which we consolidate and restate as: whether the trial court erred when it entered judgment against Perkins personally without ordering an outside accounting of the finances of Kessler. * * *In State of Indiana v. Robin Montgomery , a 14-page opinion involving the right to a speedy trial, Judge Brown writes:
Without completing the proper procedural steps of conducting an accounting and receiving all of Kessler’s pertinent financial information at the time of dissolution, we cannot be certain that the assets were distributed according to the above statute.
Because we conclude that the trial court erred when it failed to order a thorough outside accounting of Kessler’s finances, it abused its discretion when it denied Perkins’s motion to correct error. We reverse and remand with instructions for the trial court to order and oversee an outside accounting of Kessler’s finances in order to determine proper distribution to the LLC’s creditors as well as to Perkins and Brown. After an accounting is completed, the trial court shall make an appropriate entry of damages due to each party, including any determination of personal liability of Perkins under the Indiana Business Flexibility Act. Reversed and remanded.
The issue is whether the trial court erred when it granted Montgomery's motion for discharge. The Indiana Supreme Court has held that the time limitations of Indiana Criminal Rule 4(C) do not apply on retrial. Lahr v. State, 615 N.E.2d 150, 151 (Ind. Ct. App. 1993) (citing Nelson v. State, 542 N.E.2d 1336, 1338 (Ind. 1989)). Consequently, to the extent that the trial court discharged the case against Montgomery because of a violation of his right to a speedy trial under Rule 4(C), we hold that the trial court erred.NFP civil opinions today (3):
Instead, when a retrial is required, a defendant must rely on his constitutional speedy trial right, which requires that a defendant be tried within a reasonable time. Id. (citing Fryback v. State, 400 N.E.2d 1128, 1131 (Ind. 1980), reh'g denied; State ex rel. Brumfield v. Perry Circuit Court, 426 N.E.2d 692, 694-95 (Ind. 1981); Driver v. State, 594 N.E.2d 488, 491 (Ind. Ct. App. 1992), trans. denied). Where retrial is mandated by appellate decision, the reasonable time determination involves the lapse of time from certification of the appellate decision, at which point the trial court reassumes jurisdiction of the cause, to the retrial. Id. at 152 (citing United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986), cert. denied, 483 U.S. 1023, 107 S. Ct. 3270 (1987)). Here, that delay is from September 16, 2004, until May 13, 2008.
“In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), the United States Supreme Court articulated a balancing test to be used when evaluating a speedy trial claim under the United States Constitution.” Sturgeon v. State, 683 N.E.2d 612, 616 (Ind. Ct. App. 1997), trans. denied. Indiana has employed the same balancing test to evaluate speedy trial claims pursued under our state constitution. Id. (citing Crawford v. State, 669 N.E.2d 141, 145 (Ind. 1996); Fortson v. State, 269 Ind. 161, 379 N.E.2d 147 (1978)). The balancing involves an evaluation of both the State's and the defendant's conduct, taking into consideration such factors as: the length of the delay, the reason for the delay, the defendant's assertion of his speedy trial right, and prejudice to the defendant. Id. (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2192). * * *
Placing the foregoing factors [reason for delay, length of delay, assertion of speedy trial right, and prejudice] in balance, we hold that Montgomery's constitutional right to a speedy trial has not been violated. Although Montgomery complains that the State failed to comply with discovery requests, only 187 days of the delay can be attributed to this failure. An additional delay of 56 days occurred because of a scheduling conflict on the part of the State. The rest of the delay occurred because of Montgomery's requests for a continuance or without explanation in the record. Montgomery did not assert his right to a speedy trial until over three years and seven months had passed. Finally, and most importantly, Montgomery has not carried his burden of establishing that he was prejudiced by the delay. Under these circumstances, we conclude that Montgomery's constitutional right to a speedy trial was not a basis for granting his motion for discharge. * * *
However, Montgomery also argues that dismissal of the charges was proper because, he alleges, the State withheld certain photographs it intended to use at trial until almost two weeks before trial. * * *
In light of the State's pattern of failure in complying with Montgomery's discovery requests and the trial court's orders, we do not find clear error in the trial court's grant of Montgomery's motion for discharge.
However, the trial court's order is unclear as to the basis for Montgomery's discharge. The order addresses both speedy trial and discovery issues interchangeably and then concludes that the motion for discharge should be granted. We find that remand is appropriate for the court to clarify its basis for discharge. Remanded.
Bradley Bruno v. Amanda Skobel (NFP) - "Bradley Bruno (Father) appeals the trial court’s order in favor of Amanda D. Skobel (Mother) finding Father in contempt of court for violating the trial court’s visitation order. Father presents the following consolidated and restated issues for review: 1. Did the trial court abuse its discretion by finding Father in contempt? 2. Did the trial court err by ordering Father to pay Mother’s attorney’s fees, as well as the fees of her witness, Dr. John Ehrmann, for testifying at the contempt hearing? We reverse and remand. "
In Re: The Termination of the Parent-Child Relationship of I.H. and C.H. (NFP) - " Because we find that the evidence is sufficient to support the termination of Father's parental rights, we affirm the trial court‟s decision. "
David Bradley Drawbaugh and Cynthia Sue Drawbaugh v. Methodist Hospital, et al. (NFP) - "For the foregoing reasons, we grant rehearing, reaffirm our opinion regarding the Hospital, vacate the portion of our decision regarding Dr. Stanish, and reverse the trial court’s dismissal of the Drawbaughs’ complaint against Dr. Stanish. Affirmed in part and reversed in part. "
NFP criminal opinions today (3):
Ind. Courts - "Colleagues praise Lake prosecutor's commitment"
Marisa Kwiatkowski's story today in the NWI Times begins:
CROWN POINT | John Evon's list of memorable criminal trials spans decades.
The longtime Lake County deputy prosecutor and supervisor spoke to The Times recently about his most challenging legal battles.
Evon, 66, retired last month from the Lake County prosecutor's office after more than 40 years of practicing law.
Lake County Prosecutor Bernard Carter said Evon was invaluable for his knowledge and mentoring of younger prosecutors.
Evon worked for the county office from 1968 to 1980, before he was hired by the U.S. Department of Justice for its organized crime strike force.
He rejoined the Lake County prosecutor's office in 1990 and remained there until retirement.
Ind. Law - "It's the Law: Be wary of tinted windows, extra lighting"
Ind. Law - "It's the Law: Underage drinking"
Ken Kosky's NWI Times' "It's the Law" column for today, looks at underage drinking and furnishing alcohol to minors. Some quotes:
Prom and graduation season are just around the corner, and that's when police generally see a big rise in underage drinking parties.For more, see this ILB entry from Dec. 15, 2007 headed "Ex-Colts QB Trudeau, wife to pay $5,000 fine in teen party case", and related ILB entries under the heading "Justice Is Unequal for Parents Who Host Teen Drinking Parties" from July 4, 2007 and Dec. 7, 2007.
But minors -- those between 18 and 20 years of age -- should know that if they're caught drinking or possessing alcohol, they will most likely be taken to jail, local police say. Violators can face jail sentences if convicted, but most likely will face sentences like probation or community service. In addition, violators can also have their driver's licenses suspended.
Those who are 17 or younger are generally charged, but released to their parents, police said.
Other alcohol offenses for which minors can be jailed are drunken driving and minor in a tavern.
Police also can arrest parents or other adults who furnish alcohol to those who are younger than 21 years old. The adults can be arrested on misdemeanor charges of furnishing alcohol to a minor or contributing to the delinquency of a minor.
The offense of furnishing alcohol becomes a felony if a death or serious injury results, and contributing to the delinquency of a minor becomes a felony if a death results from the providing of alcohol or drugs, or if it causes the minor to commit certain drug dealing offenses.
Valparaiso police Sgt. Michael Grennes said he's seen instances where parents decide to host a party and let their children and their children's friends drink alcohol -- but believe it's fine because they will be monitoring and keeping them from driving.
"That's not OK. They can still be charged with contributing or furnishing," Grennes said.
In addition, parents are opening themselves up to civil lawsuits if they provide alcohol and a young person overdoses or leaves the party and dies, becomes injured or harms someone else in a crash, Grennes said.
Ind. Law - This week at the General Assembly - Week 6
Bryan Corbin's weekly "Legislative Notebook" report appears today in the Evansville Courier & Press. Among the items mentioned:
Local government restructuring: Important votes are ahead this week on the Kernan-Shepard Commission proposals to streamline layers of government. A Senate committee could vote on Senate Bill 512, which would shift the duties of township-level government to county government. Township trustees are fighting the bill vigorously. Another Senate committee is to hear Senate Bill 521 that would mandate consolidation of the smallest school districts.
Meanwhile, Senate Bill 506 that would replace the three county commissioners with a single elected county executive is eligible for action by the full Senate.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This week's oral arguments before the Court of Appeals:
Sunday, February 15, 2009
Law - More on: "Stalking called underreported, high-tech crime"
Updating this brief ILB entry from Jan. 27th, about the newly released US DOJ report, Stalking Victimization in the United States, is this lengthy story today in the NY Times by Elizabeth Olson, headed "Though Many Are Stalked, Few Report It ."
Courts - "Case May Alter Judge Elections Across Country "
The case of Caperton v. A. T. Massey Coal, No. 08-22, which will be argued before the SCOTUS on March 3, and about which the ILB has posted many times before, is the subject of a story today by Adam Liptak of the NY Times. Some quotes:
The case, one of the most important of the term, has the potential to change the way judicial elections are conducted and the way cases are heard in the 39 states that elect at least some of their judges. In many states, campaigns for court seats these days rival in both expense and venom what goes on in, say, a governor’s race. Yet it is commonplace in American courtrooms for judges to hear cases involving lawyers and litigants who have contributed to or spent money to support their campaigns. * * *For more briefs, see the links at the end of this ILB entry from Jan. 9th.
When the United States Supreme Court agreed to hear the case in November, much of the legal establishment cheered. Here was an opportunity, bar associations and law professors said, to draw a line separating big money from judicial decision making.
But briefs from Massey and its supporters suggest that the case, Caperton v. A. T. Massey Coal, No. 08-22, which will be argued on March 3, is more complicated than it first appears. * * *
Lawyers for Massey suggest that the case is a Trojan horse whose real intent is to do away with judicial elections because any spending in such elections is suspect. “Any impartiality concerns raised by campaign spending are inherent in the state’s decision to hold judicial elections,” James Bopp Jr. wrote in a brief supporting Massey [Appendix here] for the James Madison Center for Free Speech.
The briefs on Massey’s side add that states should be allowed to run their legal systems as they see fit. It would be impossible, they say, to fashion a sensible rule to determine when contributions or independent expenditures should require recusal under the federal Constitution’s due process clause. The other side says it has no problem with elections or financial support. But in rare cases involving especially large amounts from the people involved, they say, judges should be required to disqualify themselves.
Saturday, February 14, 2009
Ind. Courts - Judicial Center's Legislative Update #5
Here is the Indiana Judicial Center's Legislative Update, current through Feb. 13th -- a good way to keep on top of court bills, and bills impacting criminal and civil matters.
Of particular interest to the ILB, under the heading "Judicial Admiistration":
The Senate Appropriations Committee heard SB 121 concerning the automated record keeping fee authored by Sen. Bray. This bill would increase the fee from $7 to $10 between July 1, 2009 and June 30, 2013 and reduce the fee back to $7 after June 30, 2013. Mary DePrez, Director and Counsel for Trial Court Technoloy, Division of State Court Administration, spoke in favor of the legislation. Representatives from the Indiana Clerk’s Association testified that they would prefer the fee increases be retained locally. The Committee held action on this bill.Also, the ILB was surprised not to see information on HB 1491, "the nonpartisan election of superior court judges in St. Joseph County," which passed House third reading Feb. 12th on a 92-3 vote, and is written up in this ILB entry from yesterday, Feb. 13th.
Environment - More on "Memo details TVA editing of response to ash spill"
Remember this ILB entry from Jan. 23rd, where the TVA changed a talking points memo so that "catastrophic" was replaced with "sudden, accidental" to describe the "release of this large amount of material."
Today the Lexington Herald-Leader has this report from Duncan Mansfield of the AP:
Here is Mr. Mansfield's original story in the Jan. 23rd Knoxville paper. It is fascinating reading and includes links to the original TVA memo, with editing marks.
KNOXVILLE, Tenn. -- The president of the Tennessee Valley Authority is trying to rebuild credibility as well as the site of huge coal ash spill.
Tom Kilgore now acknowledges the massive sludge flood in Tennessee last December was worse than the agency's public relations staff would say. He says, "It was a catastrophe."
That contradicts an internal TVA memo obtained by The Associated Press in which the description of the disaster was changed from "catastrophic" to a "sudden, accidental" release.
But Kilgore says he has checked the dictionary and the spill of 5.4 million cubic yards of ash into a river and neighborhood near the Kingston coal-fired plant "certainly fits the definition."
Environment - "Coal Industry Wins a Round on Mountaintop Mining"
Andrew C. Revkin of the NY Times reports:
The latest in a series of federal court rulings on mountaintop coal mining in Appalachia came down firmly on the side of the coal industry on Friday.More about the opinion:
The ruling, by the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., overturned a 2007 decision that supported environmentalists’ claims that the Army Corps of Engineers had improperly issued permits for several such mining operations.
For more than a decade, environmental campaigners have tried various legal avenues to fight the mining technique, a form of strip-mining that blasts the tops off mountains and dumps the leftover rock in valleys, burying streams.
After Friday’s ruling, environmental groups urged President Obama to follow up on statements he had made during his campaign that were critical of mountaintop mining by reversing Bush administration policies intended to expand the practice.
Jennifer Chavez, a lawyer at Earthjustice, an environmental law firm that is a plaintiff in the case, called the decision “a landmark in a bad way,” that could unleash a burst of new mining.
“There’s a big backlog of permits, something like 80 or 90, we hear from our partners in West Virginia,” Ms. Chavez said. “We’re afraid there’s going to be just a floodgate opening.”
But Luke Popovich, a spokesman for the National Mining Association, said the industry was “delighted” and called the ruling “a sweeping vindication.”
The case, heard by three judges on the federal appeals panel, focused on whether the corps had been too liberal in allowing mining companies to bury streams as long as they created settling ponds and promised to transform drainage ditches into artificial streams that, in theory, might filter out contamination. The corps is responsible for preventing actions that could harm waters in the United States.Here is the 84-page opinion in the case of Ohio Valley Envtl Coalition v. Elk Run Coal Co. It is a 2-1 decision - "Reversed, vacated and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge Shedd joined. Judge Michael wrote a separate opinion dissenting in part and concurring in part." The dissent, which begins on p. 67, concludes on p. 83-84:
Among other arguments, the plaintiffs contended that the corps had not demonstrated scientifically that the ponds and artificial streams were effective.
The ruling said the corps had the expertise and discretion to issue such permits.
Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. We should rescind the four permits at issue in this case until the Corps complies with the clear mandates of the regulations. First, the Corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the Corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment.
Courts - Still more on: "Pa. judges accused of jailing kids for cash"
Several hundred families filed a class-action suit Friday against two Pennsylvania judges who pleaded guilty on Thursday to accepting $2.6 million in kickbacks for sending juveniles to private detention facilities.
“At the hands of two grossly corrupt judges and several conspirators, hundreds of Pennsylvania children, their families and loved ones, were victimized and their civil rights were violated,” said Michael J. Cefalo, one of the lawyers representing the families. “It’s our intent to make sure that the system rights this terrible injustice and holds those responsible accountable.”
Pennsylvania lawmakers called on Friday for hearings into the state’s juvenile justice system. And the Juvenile Justice Law Center in Philadelphia, which blew the whistle on the judges, said it had sworn affidavits from families who said they had sought court-appointed counsel but were told that their children would have to wait weeks, sometimes months, for a lawyer. During that time, the children would have to remain in detention, the families said.
Ind. Law - Longtime Lake County attorney Patrick J. Galvin dies
From the Feb. 13th NWI Times, a report by Bowdeya Tweh begins:
Patrick J. Galvin, a longtime attorney in Lake County and partner at Krieg DeVault LLP, died Thursday morning at Northwestern Memorial Hospital in Chicago.Today Michelle L. Quinn reports in the Gary Post-Tribune:
Galvin worked at his office in Schererville, and his practice was in the areas of banking, litigation, real estate, estate planning and probate in Indiana and Illinois. He practiced law for more than 40 years, and Galvin's father, uncle and brother all practiced law in Northwest Indiana. The firm Galvin worked for is the successor of Galvin, Galvin & Leeney.
Patrick J. Galvin was an "old-school" attorney with a deprecating manner who never met a stranger as long as he lived.
News of Galvin's death from a sudden illness this week stunned colleagues at his law office, Krieg DeVault LLC, where he practiced his trade for his entire 45-year career.
Coming from a long line of attorneys -- his father, uncle and brother preceded him in the career and with Galvin combined for 100 years of law experience -- Galvin, 70, was a force with which to be reckoned in the courtroom, yet always maintained a calm demeanor and always upheld the highest of ethics.
Robert Anderson, a partner in Krieg DeVault's Schererville office, shared many a wry joke with Galvin, whose office was next door. Anderson remembers chatting with him last Wednesday, before Galvin left to visit his daughter in New York City.
Ind. Courts - More on: "Clark rejects raise for clerk: Circuit judge and council square off again"
Clark Circuit Court Judge Dan Moore is using an unconventional tactic in hopes of winning a battle with Clark County Council over a $4,000 raise for a court reporter.
On Tuesday, Moore gave county Auditor Keith Groth a legal document which argued that the county council had actually approved his request for the pay raise at its Monday meeting by a vote of 4-2, with one abstention.
However, council rules established by an ordinance in 2006 call for five votes to approve additional appropriations. Moore argues that the council did not properly follow procedural rules when they passed the ordinance making the five-vote rule, and that only four votes are required to pass additional appropriations.
“It must be voted on two times in a row with the ordinance present,” Moore said. “But it’s open to interpretation. I’m not looking for a confrontation here, either. I just want to pay a lady here what she’s really worth, and there’s no question in my mind she’s worth that.”
According to minutes from the January 2006 county council meeting, then-Councilman Monty Snelling moved to require five votes to pass additional appropriations, a motion that carried 5-2. At the meeting, county council attorney Scott Lewis was instructed to have the ordinance prepared for the next month’s meeting.
“Mr. Lewis presented the council with an ordinance to be signed for the vote taken at the Jan. 9, 2006, meeting pertaining to the council having five votes to pass any additional appropriation request,” the February 2006 meeting minutes read. The minutes give no indication that an additional vote was taken.
Moore argued that for an ordinance to go into effect the night it is introduced, the council must approve it unanimously.
Moore’s argument has no merit, Lewis said.
“With due respect to Judge Moore, he is incorrect that the ordinance passed back in 2006 was somehow incorrect or improperly done,” Lewis said. “He’s just totally wrong on that. The ordinance was passed pursuant to Indiana statute. It’s totally valid. It’s been in place now for going on three years, and the council has acted pursuant to that ordinance for three years.
“For him to come back three years after the fact and somehow contest the validity is just not proper.”
Lewis said that a proposed ordinance must be unanimously approved for a vote, but that the vote itself does not need to be unanimous.
“For him to come three years after the fact, it’s kind of amazing,” Lewis said. “There were time periods where he was the attorney for the commissioners, and he never raised that objection then.”
Groth declined to comment on the dispute, but said he plans to meet with Lewis next week to discuss the issue. Groth said he has not yet consulted with county attorney Greg Fifer.
When reached for comment, Council President Dave Abbott — who voted against the pay raise — did not mince words.
“I think it’s a shame that a judge in his term for two months is putting the county council in a situation like this,” Abbott said. “He came to our meeting twice. Both times we turned it down. He’s bullied some of the members.”
If Moore’s tactic works, it could open the door to other officials approaching council to review votes on additional appropriations, he conceded.
Ind. Courts - "Delaware County Prosecutor Mark McKinney files appeal of judge's rulings"
Rick Yencer reports today in the Muncie Star-Press in a story that begins:
MUNCIE -- Delaware County Prosecutor Mark McKinney is again asking an appeals court to stop Delaware Circuit Court 2 Judge Richard Dailey from making him repay $168,092 in cash and attorney fees stemming from drug forfeiture cases.Here is a long list of entries from the Muncie DTF dispute.
On Thursday, McKinney and Deputy Prosecutor Eric Hoffman filed appeals of orders Dailey handed down last month seeking repayment of money and attorney fees from forfeiture cases in which confidential agreements were used without a court order. Dailey ruled such handling of the cases violated state law.
Hoffman -- who like McKinney handled civil forfeiture cases for the since-disbanded Muncie-Delaware County Drug Task Force -- received a $17,164 reimbursement order for what Dailey called "a fraud on the court" by taking drug dealers' assets and charging attorney fees without judicial oversight.
The issues before the Indiana Court of Appeal will be whether Dailey had jurisdiction to initiate and conduct an investigation into how asset forfeiture cases were conducted, and whether the veteran Delaware County judge erred in denying motions to disqualify himself from the cases.
Also questioned is whether Dailey had the authority to issue a judgment against an elected county prosecutor, and whether the evidence presented in the hearing warranted the judge's actions.
Friday, February 13, 2009
Courts - "Trial scheduled in racketeering lawsuit against Pastrick, aides"
Just posted by the NWI Times:
A federal judge on Friday set May 26 as the start of a trial in the state's civil racketeering lawsuit against former East Chicago officials.
Of the 26 defendants named in court documents, only three defendants are expected to remain for a trial, said Patrick Collins, a lawyer with Perkins Coie, LLP, whom the state designated as a special deputy attorney general for this case.
Those defendants are former Mayor Robert Pastrick and top Pastrick aides Timothy Raykovich and James Fife.
The RICO lawsuit accuses high-ranking East Chicago officials of unlawfully using public funds to pay for concrete and other work, much of which took place on private property, in order to influence votes in East Chicago's 1999 Democratic primary election.
Court - "Supreme Court Justices to Weigh Superfund Cleanup Liability"
Marcia Coyle writes in The National Law Journal in a lengthy article:
The two Superfund cases that the high court have consolidated for argument on Feb. 24 are among six potentially significant environmental cases to be decided this term under a number of different environmental laws.
The two cases -- Burlington Northern-Santa Fe Railway Co. v. U.S. and California, No. 07-1601, and Shell Oil v. U.S. and California, No. 07-1607 -- ask the justices to reverse the 9th U.S. Circuit Court of Appeals on two issues critical to Superfund liability.
First is the 9th Circuit's holding that Shell Oil Co. is liable as an entity that "arranged for" disposal of hazardous substances, so-called arranger liability; and second is its decision that both companies are jointly and severally liable for the entire cleanup costs of the federal and state governments at the disposal site because they failed to provide a reasonable basis for apportioning the liability.
Ind. Courts - "Cass Circuit Court Judge Leo Burns, a self-taught Civil War historian, jumped at the chance to talk about Lincoln"
Kevin Lilly of the Logansport Pharos-Tribune reports today in a story that begins:
A special guest visited Miss June Cotterman’s fourth grade class on Thursday for a “birthday bash” in honor of Abraham Lincoln.
Cass Circuit Court Judge Leo Burns, a self-taught Civil War historian, jumped at the chance to talk about Lincoln on the 200th anniversary of his birth. He shared with students the skills of remediation Lincoln brought to the presidency at a time when the country was divided.
“Who knows who Abraham Lincoln is?” Burns asked the class at Galveston Elementary School.
Every student raised a hand. Class members said they knew Lincoln was born in Kentucky on Feb. 12, 1809, and that he grew up to become the 16th president of the United States.
Through a program called, “Why was Lincoln a lawyer?” sponsored by the Indiana Supreme Court and Indiana State Bar Association, Burns got the opportunity to discuss Lincoln’s profession before becoming president.
Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)
For publication opinions today (2):
In Karen Long & Clifford M. Thorson v. Biomet, Inc. , a 12-page opinion, the issue is: "Whether the trial court erred in denying Defendants’ motion to dismiss because Plaintiffs do have standing to maintain their derivative action." Justice Darden concludes:
We are cognizant, as noted at oral argument, of Gabhart’s statement that "no wrong should be without a remedy." 370 N.E.2d at 358. Here, however, the Buyer succeeded to the rights of the former Biomet corporation to seek redress for any alleged injury suffered by the corporation as a result of options backdating by Defendants, and Plaintiffs have sold their shares in that corporation. Therefore, we do not find that the trial court erred in granting the motion to dismiss based on Plaintiffs’ lack of standing. Affirmed.In Babes Showclub, Jaba, Inc., and James B. Altman v. Patrick and Lisa Lair, a 28-page opinion in an interlocutory appeal from the Marion Superior Court, in a case involving the Fireman's Rule and the Rescue Docrtine, Judge Crone writes:
Babes Showclub, Jaba, Inc., and James B. Altman (collectively, “Appellants”) appeal the denial of their motion to dismiss the complaint filed by Patrick Lair and Lisa Lair (collectively, “the Lairs”) for injuries that Patrick, an Indianapolis police officer, allegedly suffered at the hands of a Babes Showclub patron while responding to a complaint on the club's premises. We reverse. * * *NFP civil opinions today (2):
With respect to the Lairs' general negligence, negligent security, and common law dram shop claims, we observe that as in Woodruff (but unlike in Heck and Johnson), the crux of this case is “the duty owed by a landowner to those coming onto the premises under a public duty during emergencies.” Heck, 659 N.E.2d at 503. In Woodruff, the fireman was fatally injured as a result of a condition of the defendant's premises, whereas in this case Patrick was allegedly injured by a patron of Babes Showclub. Given that a landowner's liability may arise from either a condition of the premises or the actions of a third person, see, e.g., Winchell v. Guy, 857 N.E.2d 1024 (Ind. Ct. App. 2006), we find this to be a distinction without a meaningful difference for purposes of the Fireman's Rule.
In Woodruff, our supreme court determined that a landowner owes no duty to a firefighter “except that of abstaining from any positive wrongful act which may result in his injury[.]” 136 Ind. at 442, 34 N.E. at 1117. As both the majority and the dissenting opinions acknowledged in Johnson, this vestige of the Fireman's Rule remained intact after Heck. Here, the Lairs have not alleged that Appellants committed any “positive wrongful act” that resulted in Patrick's injuries. * * * If anything, the “positive wrongful act” in this case was committed by the patron who allegedly assaulted Patrick. In sum, notwithstanding any indication in Heck that our supreme court is poised to abolish the Fireman's Rule altogether, we conclude that Woodruff is controlling in this case. As such, we conclude that the Lairs' general negligence, negligent security, and common law dram shop claims are barred by the Fireman's Rule.
Also, to the extent that Appellants violated any statutes or ordinances in serving alcohol to the patron, nothing indicates that those laws were enacted specifically to protect police officers responding to a complaint on a landowner's premises. Thus, the Lairs may not recover under this theory of liability. * * * Therefore, we reverse the denial of Appellants' motion to dismiss.
In Rudolfo Rodriguez v. Rainbow Searcher, Inc. (NFP), an 8-page opinion, Judge Darden writes:
Rudolfo Rodriguez, Jr. appeals the small claims court's judgment entered against him in an action filed by Rainbow Searchers, Inc. (“Rainbow”). We reverse and remand.In John Mavrikis v. Kevin Kuyt (NFP), a 5-page opinion, Judge May writes:
Issue. Rodriguez raises two issues, one of which we find dispositive: Whether Rainbow lacked standing to bring its action. * * *
The evidence shows that Rainbow reimbursed Lakeview for the amount of the redemption from funds that Deem had given Rainbow after her failure to discover the tax sale came to light. We cannot say that Rainbow has met the standing requirement, where it did not suffer any financial injury or claim against it. Its assertion of liability is merely speculative. As there is no demonstrable injury to Rainbow, we find that the trial court erred in exercising jurisdiction over Rainbow's complaint.
Asserting that Rainbow's action was groundless due to lack of standing, Rodriguez requests attorney's fees pursuant to Indiana Code section 34-52-1-1. * * *
We therefore reverse the trial court's judgment in favor of Rainbow and remand to the trial court for a determination of whether attorney's fees are appropriate in this case.
John Mavrikis appeals a small claims court judgment in favor of Kevin Kuyt. Mavrikis asserts he is entitled to one month’s rent for a property for which no lease was signed. Because Mavrikis did not present his statutory argument to the trial court before the court rendered its final judgment, we may not consider it on appeal. Accordingly, we affirm. * * *NFP criminal opinions today (12):
After the court announced its judgment, counsel for Mavrikis said: “Your Honor, by operation of statute when there is no written lease it becomes a 30 day, month to month property lease. And because of that we believe the Court’s decision is incorrect in that it should be at least a 30 day month to month lease.” The court declined to modify its judgment. * * *
[A] “party may not raise an issue for the first time in a motion to correct error or on appeal.” Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000). When a party waits until after the court enters its judgment to raise an argument, the argument is waived.
Courts - Very good news re Justice Ruth Bader Ginsburg
More to come ....
"Justice Ginsburg cancer update : no metastatis, lesion proved benign" according to the Supreme Court's public information office, in a release now quoted on SCOTUSBlog.
[More] Here is a report from the Washington Post.
Law - "Final Draft on Stimulus Bill, Complete With Last-Minute Edits" [Updated]
Here, thanks to a NY Times blog on politics and government, is the starting point. It notes:
[T]he annotations in the stimulus bill in some cases are literally worth hundreds of millions of dollars. In the appropriations section, on page 10 of Title IV, for Energy and Water Development programs, a slightly arcing line, a quick hash mark through the number 4 and a 1 etched into the margins in its place, changed a $3.4 billion appropriation for a state energy program to a $3.1 billion appropriation. And so $300 million vanished with a stroke of a pen, perhaps to re-emerge on another page, for another priority.Here is more, from the Huffington Post.
Courts - Carl Malamud fights to improve Pacer
"An Effort to Upgrade a Court Archive System to Free and Easy" is the headline to a story today in the NY Times reported by John Schwartz that touches on a number of public record and privacy issues. It begins:
Americans have grown accustomed to finding just about anything they want online fast, and free. But for those searching for federal court decisions, briefs and other legal papers, there is no Google.Other ILB entries on Carl Malamud and his efforts are listed here; recall those on the fact that the Indiana building and fire safety codes are copyrighted and not available online.
Instead, there is Pacer, the government-run Public Access to Court Electronic Records system designed in the bygone days of screechy telephone modems. Cumbersome, arcane and not free, it is everything that Google is not.
Recently, however, a small group of dedicated open-government activists teamed up to push the court records system into the 21st century — by simply grabbing enormous chunks of the database and giving the documents away, to the great annoyance of the government.
“Pacer is just so awful,” said Carl Malamud, the leader of the effort and founder of a nonprofit group, Public.Resource.org. “The system is 15 to 20 years out of date.”
Worse, Mr. Malamud said, Pacer takes information that he believes should be free — government-produced documents are not covered by copyright — and charges 8 cents a page. Most of the private services that make searching easier, like Westlaw and Lexis-Nexis, charge far more, while relative newcomers like AltLaw.org, Fastcase.com and Justia.com, offer some records cheaply or even free. But even the seemingly cheap cost of Pacer adds up, when court records can run to thousands of pages. Fees get plowed back to the courts to finance technology, but the system runs a budget surplus of some $150 million, according to recent court reports.
Environment - "Indiana lawmakers and Gov. Mitch Daniels are making another attempt to resurrect a proposed coal-to-gas plant"
That is the lede to Bryan Corbin's lengthy story in the Evansville Courier & Press today. Some quotes:
Indiana lawmakers and Gov. Mitch Daniels are making another attempt to resurrect a proposed coal-to-gas plant that potentially would bring a $2 billion investment to Spencer County.In another coal story today, Gitte Laasby of the Gary Post-Tribune reports in a story that begins:
A state Senate committee Thursday approved a bill that would try to remove an obstacle to financing the plant by having the state act as a go-between for the plant and utility companies.
Proponents of Senate Bill 423 said it would pave the way for the plant's developer, Indiana Gasification LLC, to line up federal loan guarantees that would allow it to obtain financing and start construction.
Environmental groups that long have opposed the plant also opposed the bill Thursday.
Indiana Gasification wants to build a $2 billion plant that, using a process called coal gasification, would convert high-sulfur coal into a "pipeline-quality" natural gas substitute that in turn would be sold to utility companies to provide as gas to their customers.
Announced in 2006, the project has been delayed repeatedly because the developer and utility companies — Northern Indiana Public Service Co. and Evansville-based Vectren Corp. — never could reach an accord on 30-year contracts for purchasing the gas. The proposal was withdrawn from the Indiana Utility Regulatory Commission in late November.
Rather than Indiana Gasification selling to utilities directly, Senate Bill 423 would allow a state agency, the Indiana Finance Authority, to purchase gas from the plant and immediately resell it to utilities at the same price. * * *
Gov. Mitch Daniels has been a vocal advocate of the project from the start, and said Thursday that he refused to give up on it. * * *
Hershman told the committee that neither state government nor Indiana taxpayers would be on the hook for the gas purchases, since the state agency would buy the gas and immediately re-sell it at the same price. The rate impact on utility ratepayers would ultimately be decided by the Indiana Utility Regulatory Commission.
The developer's attorney, Larry J. Wallace, told senators that taxpayers are not at risk if the project isn't built. "In this case, we (the developer) take the risk, we take the construction risk, and if we can't deliver the gas we don't get paid for the gas," Wallace said.
Opposing the bill Thursday was the Citizens Action Coalition of Indiana.
"If this were a financially viable project, they wouldn't need federal loan guarantees," coalition program director Kerwin Olson told senators. "If this were a good deal for energy, where are the utility companies? Why are they not testifying in support of this bill? Why did they not have these contracts? Why did this contract not get signed? Because this was a bad business deal."
Gov. Mitch Daniels received more than $430,000 from the coal industry for his re-election campaign, according to a report released Thursday.
Four groups behind the report -- the Citizens Action Coalition, Sierra Club Hoosier Chapter, Common Cause Indiana and Valley Watch -- claim the money bought the companies political influence, but couldn't provide specific proof.
The money came from corporations, political action committees, executives and lobbyists who are members of the Indiana Coal Council or own coal mines in Indiana. Daniels' biggest contributors were NiSource, parent company of NIPSCO, with $100,250, and Duke Energy, which gave $83,337 between January 2005 and November.
Environment - TVA coal ash spill cleanup could cost $825 million
Updating a long list of ILB entries on coal ash, including this one from Jan. 9th including a list prepared by the AP of "Indiana power plants with coal ash ponds and the amount in tons stored," Douglas Manssfield of the AP reports today in a story that begins:
KNOXVILLE, Tenn. -- It could cost as much as $825 million to clean up a river and a rural neighborhood after a massive spill of coal ash sludge from a Tennessee Valley Authority power plant, the utility's chief executive said Thursday.
President and CEO Tom Kilgore told the TVA board of directors that the nation's largest public utility had already spent $31 million on the work from December through the end of January.
It was the first board meeting since 1.1 billion gallons of coal ash sludge broke out of a containment pond on Dec. 22, flooding homes and pouring into a river inlet near the Kingston Fossil Plant, about 40 miles west of Knoxville. No one was hurt, but 300 acres were covered with up to 9 feet of grayish muck.
Courts - "N.C.A.A. Ban on Lawyers for Athletes Ruled Illegal "
Alan Schwarz reports today in the NY Times in a story that includes these quotes:
An Ohio court ruling on Thursday could markedly alter negotiations between Major League Baseball draft picks and their teams if it withstands appeal.
Erie County Judge Tygh M. Tone ruled that an N.C.A.A. rule, which renders a student-athlete ineligible for collegiate competition if he or she has a lawyer present during contract negotiations, was illegal because it interfered with an athlete’s right to legal representation.
Tone called the ban “arbitrary and capricious.” * * *
The N.C.A.A. responded in a statement: “We are disappointed in the judge’s ruling. The bylaws related to agent relationships are important principles our colleges and universities have established to protect and preserve amateurism standards. We intend to seek a review of the decision by a higher court, and we are hopeful these significant standards will be preserved.” * * *
Thursday’s ruling dealt with a narrow slice of the N.C.A.A. ban against agents that forbids a lawyer from being present during negotiations or having direct contact with a team. It did not speak to agents who were not lawyers, a distinction that now begs clarification.
“We haven’t seen the end of this,” said Tom Reich, a player agent for almost 40 years. “A guy should be allowed to have protection. He may not know the implications of different clauses and things. He may commit to things without full knowledge or full disclosure. People have lawyers for that reason. But what’s the difference between an attorney and an agent? That has to be examined.”
It also remains to be seen how far the ruling will reach. Although Tone wrote that the overturned attorney restriction was “against the public policy of the State of Ohio as well as all states within this Union,” it was unclear what effect it could or would have on players in other states.
The judge also sternly rebuked an N.C.A.A. rule which could penalize a university or a student for complying with the terms of a court injunction if that injunction was later reversed on appeal.
“Student-athletes must have their opportunity to access the court system without fear of punitive actions being garnered against themselves or their institutions and teams of which they belong,” Tone wrote, adding that the rule “takes the rule of law as governed by the courts in this nation and gives it to an unincorporated business association.”
Courts - More on: "Pa. judges accused of jailing kids for cash"
Updating this ILB entry from Feb. 11th, the NY Times this morning reports on the scheme in a front page story by Ian Urbina and Sean D. Hall headed "Judges Plead Guilty in Scheme to Jail Youths for Profit ." Some quotes from the lengthy story:
At worst, Hillary Transue thought she might get a stern lecture when she appeared before a judge for building a spoof MySpace page mocking the assistant principal at her high school in Wilkes-Barre, Pa. She was a stellar student who had never been in trouble, and the page stated clearly at the bottom that it was just a joke.Here is an interesting point from the story:
Instead, the judge sentenced her to three months at a juvenile detention center on a charge of harassment.
She was handcuffed and taken away as her stunned parents stood by.
“I felt like I had been thrown into some surreal sort of nightmare,” said Hillary, 17, who was sentenced in 2007. “All I wanted to know was how this could be fair and why the judge would do such a thing.”
The answers became a bit clearer on Thursday as the judge, Mark A. Ciavarella Jr., and a colleague, Michael T. Conahan, appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care.
While prosecutors say that Judge Conahan, 56, secured contracts for the two centers to house juvenile offenders, Judge Ciavarella, 58, was the one who carried out the sentencing to keep the centers filled.
“In my entire career, I’ve never heard of anything remotely approaching this,” said Senior Judge Arthur E. Grim, who was appointed by the State Supreme Court this week to determine what should be done with the estimated 5,000 juveniles who have been sentenced by Judge Ciavarella since the scheme started in 2003. Many of them were first-time offenders and some remain in detention.
And it raised concerns about whether juveniles should be required to have counsel either before or during their appearances in court and whether juvenile courts should be open to the public or child advocates. * * *
The United States Supreme Court ruled in 1967 that children have a constitutional right to counsel. But in Pennsylvania, as in 20 other states, children can waive counsel, and about half of the children that Judge Ciavarella sentenced had chosen to do so. Only Illinois, New Mexico and North Carolina require juveniles to have representation when they appear before judges.
Clay Yeager, the former director of the Office of Juvenile Justice in Pennsylvania, said typical juvenile proceedings are kept closed to the public to protect the privacy of children.
“But they are kept open to probation officers, district attorneys, and public defenders, all of whom are sworn to protect the interests of children,” he said. “It’s pretty clear those people didn’t do their jobs.”
Ind. Courts - "House overwhelmingly passes measure to elect jurists in St. Joe County."
Ed Ronco reports today in the South Bend Tribune:
A bill to elect Superior Court judges in St. Joseph County won resounding support from the Indiana House on Thursday, which approved the measure 88-3.ILB - here is a clue: In late Oct., 2008, the interim legislative Commission on Courts, which Senator Bray chairs, voted in favor of expanding merit selection in Lake County and retaining merit selection in St. Joe County. See ILB entries from Oct. 28th and particularly Nov. 11th, 2008.
But the breezy journey through the House could become a bit more turbulent in the Indiana Senate, where it heads next.
Superior Court judges in St. Joseph and Lake counties are appointed by the governor using a process called merit selection. Voters can decide whether to retain the judges or boot them from the bench at the end of six-year terms.
House Bill 1491, sponsored by Rep. Craig Fry, D-Mishawaka, would set up nonpartisan elections for Superior Court judges in St. Joseph County only.
"The so-called merit selection system, and I submit that that's a misnomer, puts judges effectively in lifetime tenure," St. Joseph County Prosecutor Michael Dvorak told The Tribune after the bill cleared a House committee last week.
Retention elections have never resulted in a jurist being removed from the bench.
"When no judge is ever defeated in that system, you have no accountability," Dvorak said. "So the merit selection system for the sake of having judicial independence gives up judicial accountability. To have good jurists, you have to have both."
The bill — which has been brought up in years past but never made it out of the committee process, let alone cleared the entire House — is a bad idea, said Michael Scopelitis, chief judge of the St. Joseph Superior Court.
And politicians' arguments that judges aren't accountable to anyone is code, he said.
"What they really mean is, 'They're not accountable to us,' " Scopelitis said.
In addition to retention elections, judges are evaluated by the local Bar Association and are subject to disciplinary action and citizen complaints.
Scopelitis said there's a movement statewide to expand merit selection to other counties, and the bill is designed to let the air out of those tires.
"I think there's more of an urgency on their part to push this kind of legislation through, to try to stop the momentum of those who would have merit selection," he said.
The League of Women Voters of South Bend and the St. Joseph County Bar Association spoke against the bill during committee hearings. * * *
It's unclear what journey the bill will face in the Senate. Judiciary Committee Chairman Sen. Richard Bray, R-Martinsville, could not immediately be reached for comment.
Thursday, February 12, 2009
Courts - Texas judge declares mistrial after counting 13 people on jury
From the Houson Chronicle today, a story by Brian Rogers that begins:
The Harris County jury returned a guilty verdict after deliberating 45 minutes in a murder case, but the judge realized he had a real problem. Sitting in the jury box were 13 citizens.
Instead of sentencing Charles Mapps to prison in the shooting death of his girlfriend, state District Judge Mark Kent Ellis on Tuesday declared a mistrial. An extra juror was allowed to deliberate.
Ellis said a criminal jury must have 12 people on it and can’t have any outside influences. He said the 13th juror would be considered an outside influence, despite the fact that she sat through all of the testimony.
“In 23 years I’ve never seen anything like this,” the judge said. “The jurors all seemed pretty upset, but there’s no way to unring that bell.”
Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)
For publication opinions today (4):
In Larry Cox and Tube City v. Allen Matthews, a 20-page opinion, CJ Baker writes:
Appellants-defendants Larry Cox and Tube City, LLC d/b/a Olympic Mill Services (collectively, "Tube City"), appeal from the trial court‘s judgment holding Tube City liable for negligence and ordering it to pay $4,126,529 in damages to appellee-plaintiff Allen Matthews. Specifically, Tube City argues that the trial court erred by allowing the expert testimony of Anthony Gamboa, Ph.D. In addition, Tube City maintains that the jury‘s verdict and allocation of damages is clearly against the weight of the evidence. Furthermore, Tube City asserts that the trial court improperly instructed the jury regarding the absence of Cox and documents relating to Cox‘s employment. Finally, Tube City maintains that the trial judge was improperly appointed in violation of the Indiana Trial Rules.James Lee Walters v. Jane Bennett Walters - " Finding that the trial court erred in concluding that the allocation of college expenses could not be modified and finding no other error, we affirm in part, reverse in part, and remand to the trial court with instructions to calculate Jane's portion of the children's college expenses and modify the order consistent with these findings. "
Matthews cross-appeals, claiming that this appeal must be dismissed because Tube City‘s brief was not timely filed. Finding no error, we affirm the judgment of the trial court.
Larry E. Kuhn v. State of Indiana - "We find, and the State acknowledges, that the post-conviction court's decision to conduct an evidentiary hearing on Kuhn's ineffectiveness of trial counsel claims in Kuhn's absence was error, and that Kuhn was entitled to an opportunity to present evidence to support his claims. Accordingly, we reverse the denial of Kuhn's petition for post-conviction relief and remand to the trial court for further proceedings consistent herewith. Reversed and remanded. "
In James W. Smyth v. Judy G. Hester & Estate of Timothy P. Brazil , a 19-page opinion, Judge Darden writes:
The law firm of Plews Shadley Racher and Braun LLP (“PSRB”), as intervenor, appeals the trial court's order awarding attorney fees to the Estate of Timothy P. Brazill (“Estate”) and to attorney Judy G. Hester (“Hester”) for actions by PSRB on behalf of its client James W. Smyth. We reverse and remand. * * *NFP civil opinions today (7):
We acknowledge that the record may include some questionable litigation tactics that might support the trial court's exercise of its discretion to award attorney fees. However, our review in that regard is impaired by the fact that the order appealed does not provide us with any insight as to the trial court's reason for the award of attorney fees in this case, i.e., what the trial court found to be frivolous, unreasonable, and bad faith conduct. Accordingly, we remand to the trial court for further consideration and explanation of its judgment in that regard.
Lillian Tyring v. Barbara and Jerry Sanders (NFP) - "Here, we have nothing other than Tyring’s representations that the Trust is a revocable trust and that Wife has no vested interest in any of the Trust assets. A review of Tyring’s Trust document is the only way to determine what interest, if any, Wife may have in the Trust assets. Wife’s vested interest in the Trust assets, if any, is relevant to matters in the dissolution action, specifically with respect to Wife’s request for spousal maintenance. To protect Tyring’s interest in keeping the contents of the Trust document confidential, the trial court granted a protective order such that Husband and his counsel were ordered to not disclose the contents of Tyring’s Trust document to any third parties, other than experts retained for purposes of this action, without the court’s approval. If, after review of the Trust documents themselves, Husband determines that Wife may have a vested interest therein, Husband must request another hearing to seek the court’s permission to gather additional information relating to Tyring’s Trust. In light of Indiana’s liberal discovery process, we conclude the trial court did not abuse its discretion in ordering Tyring to turn over her Trust documents to Husband. "
Randy Evans v. Myers Autoworld, Inc. (NFP) - "Randy Evans appeals the trial court's order granting summary judgment in favor of Myers Autoworld, Inc. (“Myers”). Evans contends that the trial court erred by granting summary judgment in favor of Myers with regard to his claim for retaliatory discharge. We affirm."
In the Matter of W.M. v. Marion Co. Dept. of Child Services (NFP) - " Mother raises the following restated issue for our review: whether there is sufficient evidence to support the juvenile court’s finding that W.M. was a CHINS as to Mother. We affirm."
In the Matter of the Term. of Parent-Child Rel. of N.R. v. Vanderburgh Co. Dept. of Child Services (NFP) - "A thorough review of the record leaves this court convinced that the trial court's judgment terminating Mother?s parental rights to N.R. is supported by clear and convincing evidence. Since the time of N.R.'s removal, Mother has failed to make any improvement in her ability to care for her son. It is unfair to ask N.R. to continue to wait until Mother is willing to obtain, and benefit from, the help that she needs. "
Jason C. Burkett v. Winter Louthain (Shidler) (NFP) - "The trial court did not make the requisite findings as required by section 31-14-14-1, and did not find that restricting Burkett’s visitation was in D.B.’s best interests as required by section 31-14-14-2. Therefore, we must remand this case to the trial court with instructions to enter an order containing findings sufficient to support its order restricting Burkett’s visitation with D.B. or enter an order that does not contain a visitation restriction. Given the circumstances presented in this case, i.e. that Burkett is serving a forty-year term in the Department of Correction for sex offenses committed against D.B.’s mother, it should be a simple matter on remand for the trial court to enter a new order with the findings required by sections 31-14-14-1 and 2. "
Gloria C. Dickey v. David J. Dickey (NFP) - "Because I believe the modification of maintenance was error, I must respectfully dissent. As for the second issue, I agree with the majority's result, but write to address Gloria's due process argument. "
In the Matter of H.T. and J.R. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "Based upon the foregoing, we find no clear error from the trial court’s determination that H.T. and J.R. were CHINS because Mother has untreated substance abuse and mental health issues that impaired her ability to appropriately parent them. Affirmed. "
NFP criminal opinions today (8):
Environment - More on: Indianapolis law firm reviews Randolph County proposed CAFO regs
MUNCIE -- Roy Budd, director of Energize-ECI, has convinced fellow members of the Muncie-Delaware Metropolitan Plan Commission to again table a proposed ordinance regulating concentrated animal feeding operations (CAFOs).
Commission members Gary Alexander, a real estate appraiser, and Larry Bledsoe, a county commissioner, both of whom are CAFO critics, objected to delaying action on the regulations, which the commission has considered for more than three years.
Budd chairs a CAFO committee that recommended tabling further deliberations until the state Legislature and the U.S. Environmental Protection Agency enact new CAFO rules. In addition, Budd noted that the proposed ordinance's setback regulations were illegal, according to an analysis conducted for the commission by the Indianapolis law firm Bose McKinney & Evans.
For three years in a row, "there has not been any legislation come out of the Statehouse regarding CAFOs," Alexander said at a recent meeting of the commission. "And in the last eight years, the EPA has reduced restrictions on CAFOs.
"So I don't think it's in the best interest of the citizens of Delaware County to wait on the state and federal government to protect their health, their welfare and their property values."
Budd responded: "With all due respect, IDEM (Indiana Department of Environmental Management) regulates the construction, performance and closure of all confined feeding operations in the state. Home Rule dictates that that will not be superseded by local ordinance."
Because IDEM regulates CAFO setbacks -- the minimum distance between industrial livestock farms and neighboring properties -- Delaware County's proposed setbacks would appear to violate the state's Home Rule Law, according to Bose McKinney. Under that law, local governments have no authority to regulate "conduct that is regulated by a state agency, except as expressly granted by statute."
Indiana administrative code establishes setbacks of 100 feet between CAFOs and property lines, roads, waters of the state, drainage inlets and water wells, plus a 1,000-feet setback from public water supplies and a 300 feet setback between manure lagoons and waters of the state and drainage inlets.
Delaware County's proposed CAFO setbacks are stricter, including at least 1,000 feet from a residence; half a mile from residential subdivisions and hospitals; a mile from schools, cities and towns; and 1,000 feet from a church.
"I just think Bose McKinney are wrong on this," said Eric Kelley, an urban planning professor at Ball State University and member of the Indiana Land Resources Council (ILRC), in an interview. "To the extent that IDEM is not regulating certain setbacks, I think that the county can do so."
ILRC developed model CAFO ordinances for Indiana counties that are replete with setback recommendations.
"We had a young attorney with a farming background as ILRC staff when we did those model regulations, and she was fine with those setbacks, as was Andy Miller, who was then the head of the Indiana State Department of Agriculture," Kelley said.
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. Young (ND Ind., Judge Moody), an 11-page opinion, Judge Sykes writes:
Victor Young pleaded guilty in 2001 to possessing crack cocaine with intent to distribute. In 2007 the United States Sentencing Commission retroactively amended the crack cocaine sentencing guidelines, and Young asked the district court to appoint counsel for purposes of pursuing a motion to reduce his sentence based on that amendment. See 18 U.S.C. § 3582(c)(2). The court appointed counsel, the motion was filed, and the government agreed that a sentence reduction was appropriate.
The district court, however, declined to reduce Young’s sentence. The judge’s decision was based in part on the contents of an addendum to the presentence report prepared at the court’s request in connection with Young’s motion. The addendum reported that Young had been sanctioned for more than a dozen incidents of misconduct while in prison. The judge thought this reflected poorly on Young’s rehabilitation and indicated he would be a danger to the community if his sentence was reduced.
On appeal, Young challenges the process the district court used to decide the § 3582(c)(2) motion. He argues that if the court intended to rely on the new information about his record of prison infractions, he should have been given notice and an opportunity to contest it. We decline to impose the sort of procedural rule Young suggests is required in this context. The district court has substantial discretion to determine how it will evaluate a § 3582(c)(2) motion and whether to grant a sentence reduction. Here, Young had access to the addendum four days before filing his motion and could have addressed the information about his prison behavioral record in his initial submission to the court. Under these circumstances, the district court did not abuse its discretion in denying the sentence-reduction motion.
Ind. Law - "Local lawyers teach about Lincoln"
In this letter today in the Evansville Courier & Press, Doug Briody, an Evansville attorney, writes:
Today, the Evansville Bar Association, in cooperation with the Indiana State Bar Association, marks the 200th anniversary of Abraham Lincoln's birth by sharing our sixteenth President's accomplishments with area schoolchildren.This statewide birthday bash for Abraham Lincoln is happening across the State of Indiana today. via a partnership between the Indiana Supreme Court and the Indiana State Bar Association. See more here.
Some 40 lawyers and judges from the Evansville region volunteered to speak in dozens of schools in Vanderburgh, Posey, Warrick, and Spencer Counties, on "Why Lincoln Was a Lawyer." A representative of the state bar organization, Carissa Long, commented: "we are truly amazed and appreciative of the volunteer efforts in [the Evansville] area."
Ind. Gov. - "Who Are These People?" [Updated]
Norman Cox has an outstanding post today on the Capitol Watch Blog, on the Senate committee hearing on the bill to abolish township trustees. A sample:
The best indication of the way the wind is blowing came in the consistently hostile questions from committee members to reform advocates from groups like the Chamber of Commerce and the League of Women Voters and the solicitous way they questioned township officials.[Updated at 1:25 PM] Here is Mary Beth Schneider's coverage today in the Indianapolis Star, headed, "Divisions arise over township bill." The bill is SB 512, authored by Senator Connie Lawson. The story begins:
What really appalled me was when reformers were challenged twice for violating the rule about disparaging elected officials when they recited some of the misdeeds of township officials. I always thought that rule applied only to disparaging other senators during floor debate. But it apparently applies to anyone criticizing anybody who’s managed to elevate himself about the rest of us mere mortals by winning a public office.
Well, I’m sorry. But when somebody steals hundreds of thousands of dollars by illegally padding his salary and diverting public money for vacations and home improvements, as a township trustee in Southwest Indiana did, WHY CAN’T YOU CALL THAT PERSON A CROOK?
A reform-minded township trustee from Porter County was also chastised for referring to her predecessors as “good old boys” who filled the office with their relatives. If they did that, what’s wrong with saying it? There’s a reason private business doesn’t let you hire your relatives, but government leaders have never gotten that.
No vote was taken Wednesday on either Senate Bill 512, which eliminates township government, or on Senate Bill 482, which would complete the consolidation of Marion County government under the Indianapolis mayor.See an earlier and longer story here.
"I think it's going to be very difficult" to pass either bill, said Sen. Connie Lawson, the Danville Republican who is chairwoman of the committee and author of the bill axing township government.
Sen. Beverly Gard, R-Greenfield agreed: "It's going to be difficult, without question. A lot of legislators are attached to their trustees."
Law - Lincoln's law practice explored tonight, on Lincon's 200th birthday
"Lincoln: Prelude to the Presidency" will air tonight on PBS, here in Indianapolis on WFYI at 9:00 PM. H
Here is a description:
As a lawyer traveling Illinois’ Eighth Judicial Circuit, Abraham Lincoln made two simultaneous journeys. He gained respect as a skilled attorney and mesmerizing speaker, but he also built a political base and refined his views on the important issues of the day, many of which he would face in the White House.
His experiences from 1837 to 1860 on muddy roads, in homes of friends and in courtrooms on the circuit guided him when he became president. WILL-TV’s Lincoln: Prelude to the Presidency tells the story of the cases he tried and people he met during this critical period of his life.
“That’s where he really got a sense of the various kinds of problems people faced,” said historian Doris Kearns Goodwin, one of the experts featured in the documentary. “He got a sense of the exuberance of their dreams and their hopes. In a certain sense, I think it was the root of his political education.”
* Reenactments of Lincoln as you’ve never seen him before: defending a slaveholder trying to reclaim a slave named Jane Bryant and her children; brandishing a sword on the banks of the Mississippi River at dawn before being talked out of fighting a duel; and crossing the prairie reading a book atop his horse, Old Tom.
* Interviews with experts, including Doris Kearns Goodwin, Edna Greene Medford and Orville Vernon Burton, who describe how the circuit built the skills Lincoln used as president.
Environment - "Ethanol, Just Recently a Savior, Is Struggling "
That is the heading of this story by Clifford Krauss today in the NY Times that begins:
Barely a year after Congress enacted an energy law meant to foster a huge national enterprise capable of converting plants and agricultural wastes into automotive fuel, the goals lawmakers set for the ethanol industry are in serious jeopardy.
As recently as last summer, plants that make ethanol from corn were sprouting across the Midwest. But now, with motorists driving less in the economic downturn, the industry is burdened with excess capacity, and plants are shutting down virtually every week.
In the meantime, plans are lagging for a new generation of factories that were supposed to produce ethanol from substances like wood chips and crop waste, overcoming the drawbacks of corn ethanol. That nascent branch of the industry concedes it has virtually no chance of meeting Congressional production mandates that kick in next year.
The decline in fortunes has been extreme for both kinds of ethanol since last summer, when $145-a-barrel oil appeared to shift fuel economics in their favor.
Only months ago, refiners in some regions were buying up as much corn ethanol as they could to blend with expensive gasoline, effectively keeping pump prices down slightly. Meanwhile, investors seemed willing to finance plants to produce next-generation biofuels.
But since the summer, oil and gasoline prices have plunged, while the price of corn, from which virtually all commercial ethanol in this country is made, has remained relatively high. Refiners are limiting their ethanol purchases to a level required to meet federal blending mandates — a level far below the industry’s capacity.
“The ethanol industry is on its back despite the billions of dollars they have gotten in taxpayer assistance, and a guaranteed market,” said Amy Myers Jaffe, an energy analyst at Rice University.
Courts - WSJ story explores concept of standing
In a story headed "Why Some Constitutional Suits Don't Stand a Chance in Court," Jess Bravin of the WSJ writes today:
The idea of standing flows from the Constitution, which grants federal courts jurisdiction over "cases" or "controversies." The Supreme Court has interpreted this to mean that courts can't give advisory opinions or make policy pronouncements, and only should decide disputes where the plaintiff alleges "concrete" and "particularized" harm, rather than what Justice Antonin Scalia has called "purely psychological displeasure."
That is why judges toss out certain cases -- because the plaintiffs weren't able to show they suffered concrete harm. That was the circumstance when an Internet-fueled rumor sparked several lawsuits seeking to bar Honolulu-born Barack Obama from the presidency because the plaintiffs doubted he was, as the Constitution requires, "a natural-born citizen."
In dismissing one such suit, Judge R. Barclay Surrick, of federal district court in Philadelphia, said an aim of the standing doctrine is to prevent courts from deciding questions "where the harm is too vague." He observed that a disgruntled voter who suffered no individual harm "would have us derail the democratic process by invalidating a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested presidential primary in living memory."
Judge Surrick acknowledged that "standing can be a difficult concept for lawyers and nonlawyers alike." Nonetheless, he wrote, "standing has been a consistent barrier to lower courts hearing generalized, undifferentiated claims by voters and citizens."
Wednesday, February 11, 2009
Courts - "Pa. judges accused of jailing kids for cash"
Michael Rubinkam and MaryClaire Dale report in the Washington Post in a lengthy story that begins:
WILKES-BARRE, Pa. -- For years, the juvenile court system in Wilkes-Barre operated like a conveyor belt: Youngsters were brought before judges without a lawyer, given hearings that lasted only a minute or two, and then sent off to juvenile prison for months for minor offenses.
The explanation, prosecutors say, was corruption on the bench.
In one of the most shocking cases of courtroom graft on record, two Pennsylvania judges have been charged with taking millions of dollars in kickbacks to send teenagers to two privately run youth detention centers.
"I've never encountered, and I don't think that we will in our lifetimes, a case where literally thousands of kids' lives were just tossed aside in order for a couple of judges to make some money," said Marsha Levick, an attorney with the Philadelphia-based Juvenile Law Center, which is representing hundreds of youths sentenced in Wilkes-Barre.
Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)
For publication opinions today (1):
In Harold E. Bean, Jr. v. Carol A. Bean , a 20-page, 2-1 opinion, Judge Brown concludes:
For the foregoing reasons, we reverse the trial court‘s grant of Carol‘s petition for additional relief for funds owed to her by Harold concerning the tax liability, second mortgage, college expenses, and attorney fees, and remand for a hearing consistent with this opinion. Reversed and remanded.NFP civil opinions today (4):
CRONE, J. concurs
ROBB, J. concurs in part and dissents in part with separate opinion [that begins, on p. 18] I concur with the majority‘s decision to reverse the trial court‘s order regarding college expenses. I also concur in the majority‘s decision to reverse the trial court‘s order that Harold reimburse Carol for her payment of the second mortgage and tax liability and that he pay her attorney fees, but respectfully dissent from the majority‘s decision to remand the case for a further evidentiary hearing on those matters.
Emi Devine v. Ralph Devine (NFP) - The issue was: Whether the trial court lacked jurisdiction over the dissolution. "Considering this evidence, we cannot say that the trial court committed clear error in determining that Ralph had satisfied the residency requirement under Indiana Code section 31-15-2-6(b). Although Emi presented conflicting evidence during the hearing, it is within the trial court‟s purview to assess the credibility of the witnesses, and we will not reweigh the evidence. "
Strata Graphics Inc. v. Cirrus Products, Inc., Founders Acquisition Corp., Batesville Casket Co. Inc., et al (NFP) - "Strata Graphics, Inc. (“Strata”) appeals the trial court‟s granting of a discovery protective order in favor of and award of sanctions to Batesville Casket Company, Inc. (“Batesville”). We affirm in part and reverse in part. "
In the Matter of A.M.P., Jy.H., and Je.H. v. Lake County Dept. of Child Services (NFP) - "The judgment terminating Mother’s parental rights was not clearly erroneous."
In Garry Coleman v. Review Board of the Indiana Dept. of Workforce Development, and State Board of Tax Commissioners (NFP), a 12-page opinion, Judge Barnes writes:
Garry Coleman appeals the denial of unemployment compensation benefits by the Department of Workforce Development (“DWD”) following the termination of his employment with the Indiana Department of Local Government Finance (“DLGF”). We reverse and remand.NFP criminal opinions today (6):
Issue. Coleman raises several issues on appeal. We address only one dispositive issue, which is whether there is sufficient evidence that the DLGF terminated Coleman’s employment for “just cause.” * * *
We conclude the record here lacks substantial evidence to support a finding that Coleman knowingly violated a uniformly enforced rule. We first note that the DLGF/State of Indiana discipline policy states in part, “Where appropriate, employee disciplinary actions are to be corrective and progressive in nature.” * * *
It strikes us that if the DLGF truly was concerned that Coleman was sending too many personal emails, under this progressive discipline policy it ought to have confronted him about it and placed him on notice about his behavior. If, then, Coleman continued sending personal emails as before, it would be more appropriate to argue that the DLGF had just cause to fire him. Instead, the DLGF did not attempt any corrective measures, skipped “progressive” discipline altogether, and immediately terminated Coleman’s employment. The DLGF, however, has failed to allege or prove that the extent to which Coleman used his DLGF email account for personal use made his continued employment “unacceptable,” which is the stated basis for skipping “progressive” discipline and proceeding directly to termination. * * *
Certainly, the DLGF is entitled to restrict the amount of personal emailing that its employees do during work hours. The DLGF could have confronted Coleman about his email usage if it felt that usage exceeded the vague “de minimis” boundary. The DLGF also was entitled to fire Coleman when it did, particularly given his apparent dislike of his superiors at the agency; this is not a wrongful termination case. But the DLGF failed to establish that Coleman’s firing, with no advance warning regarding his email usage, was for just cause as that term applies in the context of unemployment insurance. * * *
The record lacks substantial evidence that Coleman was terminated for just cause. We reverse the Review Board’s denial of unemployment compensation benefits and remand for further proceedings consistent with this opinion.
Ind. Decisions - 7th Circuit decides one Indiana case today; 2 others of note
Villano v. Astrue, Comm. of Soc.Sec. (ND Ind., Judge Lee), is an 11-page Per Curiam opinion, originally unpublished:
Debi Villano applied for disability insurance benefits and supplemental security income benefits, claiming that she was disabled primarily because she had arthritis in her knees and was obese. The Social Security Administration denied her claims at all stages of review, and the district court upheld the decision of the administrative law judge (“ALJ”). On appeal, Villano argues that the ALJ erred by failing to explain his finding that Villano was not entirely credible, by failing to discuss Villano’s depression and the effect of her obesity on her arthritis in computing her residual functioning capacity, and by determining that Villano acquired from a previous job the transferable skill of “judgment.” Because we agree that the ALJ’s decision contains several significant errors, we vacate the judgment and remand to the agency. * * *Two other non-Indiana cases today of interest.
Here, it appears that the ALJ followed the appropriate procedure, but as we have explained, he made legal and factual errors in reaching his conclusion.
Accordingly, we VACATE the judgment of the district court and REMAND the case to the agency for further consideration. On remand, the ALJ should give reasoned assessments of Villano’s credibility, RFC, transferable skills, and ability to perform a significant number of jobs.
Norfolk Southern v. Box is an Illinois case. Illinois requires rail switching yards built or substantially renovated after February 2005 to include walkways, parallel to each track, for persons who work there. Norfolk Southern Railway contends that federal law supersedes this requirement. The Court rules that:
Because nothing in this record (or any published literature we could find) suggests that the walkway regulations of other states have imperiled rail safety, or even affected railroads’ costs of maintaining a constant level of safety, the district court’s findings of fact are not clearly erroneous. And, given those findings, the state is entitled to enforce its walk- way requirement.In an earlier paragraph the Court writes:
Several states have laws or regulations requiring walkways in rail switching yards. Both state and federal courts are divided on the question whether these rules are compatible with federal law. Compare Southern Pacific Transportation Co. v. California Public Utilities Commission, 820 F.2d 1111 (9th Cir. 1987) (California rules valid), Elston v. Union Pacific R.R., 74 P.3d 478 (Colo. App. 2003) (Colorado rules valid), and CSX Transportation, Inc. v. Miller, 159 Md. App. 123, 858 A.2d 1025 (2004) (Maryland rules valid), with Missouri Pacific R.R. v. Texas Railroad Commission, 948 F.2d 179 (5th Cir. 1991) (Texas rules preempted), and Black v. Seaboard System R.R., 487 N.E.2d 468 (Ind. App. 1986) (Indiana rules preempted). These decisions start, as do we, with this federal law: [49 U.S.C. §20106] * * *Another case today, Lott v. Levitt, begins:
The major problem with the railroad’s position is that no federal regulation deals with walkways.
John Lott, an academic and economist, believes that his reputation was sullied by Freakonomics, the popular and off-beat book written by Steven Levitt and Stephen Dubner. Lott’s name was mentioned in one paragraph of the 200-page book, and he understood this passage to be an accusation of scholarly dishonesty. Offended, he filed suit against Levitt and HarperCollins, the publisher of the book, claiming that he had been defamed. The district court dismissed this claim after concluding that the passage could reasonably be read as a refutation of Lott’s controversial theories and not a swipe at his integrity. Lott now appeals.The Court affirms the district court's dismissal of the suit.
Ind. Gov't. - "Roosters head Lake County Council meeting agenda"
CROWN POINT -- Early morning rooster calls in one semirural Crown Point subdivision are about to get a little less noisy.
For more than an hour, while Sheriff Roy Dominguez and other county officials waited for their turn on the agenda, the Lake County Council tried to resolve what should be done with eight roosters in a small, unincorporated subdivision in rural Crown Point.
Jim Kearney keeps several hens and eight roosters, along with a few ducks, on his four-plus acre lot that he moved into last August. His four sons are in 4-H, and they raise the chickens for show at the county fair.
But in order to keep the chickens, they needed a variance from the council to be zoned as a hobby farm.
Neighbors across the street objected to the variance, saying the rooster calls at 4:30 a.m. were an annoyance and disrupted their sleep.
Several others said the area has a history of farm animals and its share of barking dogs, not to mention all the wildlife sounds natural to the area, such as bullfrogs, coyotes and hawks.
The council, not wanting to take 4-H away from the kids, wanted to find a compromise. * * *
The council finally agreed to allow the family three roosters, one for each of their school-age eldest sons.
Environment - Yet more on: Cleanup of Angola's former Dana site
If the lack of phone calls, e-mails and conversations are any indication, Steuben County Commmissioners made the right decision in funding the environmental cleanup at the former Dana-Weatherhead property.
The phones might stop ringing for members of the Steuben County Council after their Tuesday approval to appopriate the $1 million commissioners approved spending it their Jan. 20 meeting.
The soil and air at and surround the former Dana facility have been polluted with oil and chloride and threaten the city’s water supply. Dana had entered into an arrangement with the Indiana Department of Environmental Management to contain the contamination. However, Dana was absolved of any responsibility through bankruptcy protection.
Before the commissioners approved providing $1 million in Major Moves money for the cleanup on Jan. 20, Commissioner Ron Smith said he was inundated with calls and e-mails from people wanting the county to help pay for the estimated $5.5 million cleanup. After the decision was made, the communication stopped. “That should tell you something,” Smith said Tuesday.
While the commissioners approved providing the money to the city of Angola for either environmental remediation or relocating wells, there were no other conditions placed on the funds. The council tightened up the requirements somewhat. “I am not in favor of just handing them a million dollars,” Councilwoman Linda Hansen said.
Ultimately the measure approved by the council allows the money to be spent once it is no longer in an investment vehicle and invoices are presented. The money can only be spent on environmental cleanup or moving wells as it relates to the Univertical property. The measure passed on a 7-0 vote, though in previous meetings of the council it appeared the measure might only squeak through on a 4-3 vote.
As it stands, with $1 million apiece committed by the county, Angola and Univertical owner Chuck Walker, thhe project is still $2.5 million shy of being funded.
IDEM has said it would commit money from the sale of Dana stock it holds to the project. The value of the stock has been estimated at between $210,000 and $3 million.
“We have identified the range of cash we could expect from the settlement, and will work to ensure the most efficient use of those funds,” said Amy Hartsock, spokeswoman with IDEM. “We’ll be working further with all involved parties concerning funding details, and we look forward to working in partnership with the city and the county.”
City officials are working on trying to find other sources of funding to pay for the work. Walker and Angola Mayor Dick Hickman are supposed to meet later this week to discuss progress of the project.
Smith said he was hopeful that economic stimulus money could be used for the cleanup because the project is shovel ready.
City and county officials have contended they needed to take care of the environemtal problem not only because of the threat it poses to the city’s drinking water system, but to the 55 jobs and the potential for growth at Univertical. “It’s not just the environment,” Councilwoman Sara Tubergen said, “it’s all these jobs.”
Environment - More on: "CAFO regulation proposals will return to Indiana General Assembly in eight bills"
The Indiana House Agriculture and Rural Development Committee heard testimony in a packed committee room Tuesday on two bills aimed at regulating large animal feeding operations.
Ag committee Chairman Phil Pflum, D-Milton, said the committee didn't vote on the bills because several questions were raised. The committee will hear limited testimony and will vote on House Bill 1074 and 1075 on Feb. 17, he said.
"We had a roomful of people from all over the state," Pflum said. "Some are opposed to fees and fines. It's a tough issue."
Opponents of the state park setbacks said the bill's restrictions on large livestock operations would almost impose a moratorium on confined feeding operations (CFOs) and concentrated animal feeding operations (CAFOs) in the state, Pflum said.
The bill prohibits locating a CFO or a CAFO or applying manure within two miles of a state park, reservoir or other land or water under the jurisdiction of the Department of Natural Resources.
The committee asked the Legislative Services Agency, which does research for the Legislature, to determine the setback's actual restrictiveness, Pflum said. An answer on that issue is expected today, he said.
Union County residents Krista Carr and Randy Hartman also testified before the committee. Carr spoke in favor of the state park setbacks and Hartman testified in favor of the "good character" clause requirement in House Bill 1074, Richmond CAFO watcher Barbara Sha Cox said.
The House good character bill allows the Indiana Department of Environmental Management to review and consider any prior environmental violations applicants might have before granting a wastewater permit. It also requires an applicant to submit evidence of financial assurance in an established amount, based on livestock numbers, to ensure compliance with environmental laws.
"There was opposition to that bill today. Some wanted three years instead of five years (of history) for information that is reviewed for the good character clause," Cox said.
Many farm groups are opposed to both bills, Cox said. The Indiana Pork Producers Association is the exception, with a representative speaking in favor of good character bills in both House and Senate hearings, Cox said.
The Indiana Senate's good character bill, sponsored by Sen. Beverly Gard, R-Indianapolis, is still alive in Gard's environmental committee. A vote on that bill could come next week too, Cox said.
"We need bills coming from both (chambers)," Cox said. "We need to get some of these passed and get to a conference committee."
Ind. Law - "Obey open records law, or else"
That is the headline to an editorial today in the Indianapolis Star, supporting:
Senate Bill 232, which, in its current form, would empower a judge to levy a fine of up to $1,000 for willful violation of public access laws. Only after going through the request process and being informed by the access counselor that he must comply under law could an official face the penalty.Other ILB entries on the bill are here. According to the Action List, the bill is still in the Local Government committee and is not scheduled to be heard this week.
Courts - Still more on: "Kentucky will retain all court records forever"
Updating this ILB entry from Sept. 1, 2008, which included this quote from an Aug. 31, 2008 story by Jason Riley in the Louisville Courier Journal:
In April of last year, the state's top court administrator said Kentucky would retain all court records forever, a response to widespread criticism after tens of thousands of old Jefferson County files were destroyed.Today Mr. Riley reports:
But now the state archives building in Frankfort and courthouses across Kentucky are overflowing with files of misdemeanors and traffic cases that used to be destroyed.
Officials say they must come up with a different solution.
"We are just out of room," said Kentucky Chief Justice John D. Minton Jr. "We're drowning in paper."
So Minton has formed a committee ...
After nearly two years in which Kentucky courts were forbidden from destroying any court files -- a response to widespread criticism after tens of thousands of old Jefferson County files were shredded -- the state Supreme Court has ruled that certain records may again be destroyed.
Kentucky Chief Justice John D. Minton Jr. said last year that the state was "drowning in paper" and formed a committee, led by Court of Appeals Judge Thomas Wine, to review how the state retains, archives or destroys court records.
Yesterday, Minton issued a statement saying the high court is following the first set of recommendations from the committee, which includes allowing old financial records and records in small claims and district court civil cases to be destroyed.
"This … is a good first step in determining how we should protect critical records while disposing of records that are no longer vital," Minton's statement said.
The committee's recent recommendations do not include what to do with misdemeanor and traffic cases, which were major concerns when it was revealed in 2006 that the Administrative Office of the Courts had destroyed such records in Jefferson County if they were at least 5 years old.
"All of those records are still being preserved," Wine said in an interview. "We are still deciding how to better retain and how long to retain" those cases. * * *
A report from a panel appointed by former Chief Justice Joseph Lambert in February 2007 blasted the Administrative Office of the Courts for "indifference, inexperience, intransigence and ineptness."
The panel condemned those officials for ignoring the importance of the records and for not realizing they could be stored cheaply in electronic formats.
Ind. Decisions - Tax Court posts another opinion yesterday
In Rohrman v. Tippecanoe Co. Assessor, a 5-page opinion, Judge Fisher denies the Assessor's motion to dismiss:
First of all, Rohrman’s failure to name the Assessor in his December 1, 2008
petition is not the type of error that implicates this Court’s subject matter jurisdiction. Rather, it is the type of procedural error that may prevent this Court from exercising its jurisdiction. * * *
Second, while the general rule requires that a new defendant to a claim be added prior to the running of the statute of limitations, “Trial Rule 15(C) provides an exception to th[at] rule.” Crossroads Serv. Ctr. v. Coley [re relation back of amendments] * * *
It is unequivocally clear that, in this case, these requirements have been met. Rohrman’s claim in his amended petition is the exact same claim that was asserted in his original petition. The Assessor received a copy of the amended petition on December 15, 2008 – 11 days after commencement of the original petition. As a result, it is absurd for the Assessor to claim that somehow she is prejudiced in maintaining her defense on the merits: she had time to file her responsive pleading (appearance, answer, and motion to dismiss) as evidenced by the fact that she did so and before it was even due. See Indiana Tax Court Rule 5.
Tuesday, February 10, 2009
Ind. Law - Report(s) of the Indiana Judicial Study Commission from the 1960s
If anyone has copies of the Report(s) of the Indiana Judicial Study Commission from the 1960s, I'd like to scan them and put them online.
Ind. Courts - Merit selection problems for Lake and St. Joseph County Courts
This afternoon Patrick Guinane of the NWI Times is reporting:
[Rep. Linda Lawson, D-Hammond] said she doesn't expect to get a hearing for House Bill 1330, which would move four additional Lake County Superior Court judges under the merit selection system the county has been under since the 1970s.The story also reports:
House Speaker Pat Bauer, D-South Bend, instead is backing legislation that would resume elections for St. Joseph County judges. Lake and St. Joseph are the only Indiana counties in which judges are slated by a merit review panel and appointed by the governor, an anomaly Bauer blames on decades-old Republican efforts to sap political power from the Democratic strongholds.
An Indiana House panel voted 7-3 Tuesday to add a $10 filing fee to Lake County court cases, a proposal that would generate nearly $800,000 a year to build a consolidated courthouse in Crown Point. * * *
"The population is shifting to South County, and Crown Point is the center of the county," Lawson told the House Judiciary Committee on Tuesday.
Gerald Bishop, a Merrillville attorney who serves as associate counsel for the Lake County Council, said the legislation would ease "all the political discussions about payroll and everything else" that have stymied past consolidation efforts. He said having one central courthouse would make life easier for attorneys who practice in Lake County.
The $10 fee would be paid by those who file a civil case, such as a divorce, along with convicted criminal defendants, and those who enter a pretrial diversion program.
But committee members bristled at a provision that would allow at least some of the estimated $768,000 a year generated by the new fee to be spent on court renovations.
Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
Dan L. Williamson v. Review Board of Dept. of Workforce Development (NFP) - "Under the facts and circumstances of this case, we conclude that substantial evidence existed to support the Review Board’s determination that Williams was discharged for just cause. "
NFP criminal opinions today (2):
Ind. Decisions - Supreme Court issues one today
In Steven McCullough v. State of Indiana, a 12-page, 5-0 opinion, Justice Dickson writes:
We grant transfer and hold (1) in the exercise of the appellate authority to review and revise criminal sentences, a court may decrease or increase the sentence; (2) the State may not by appeal or cross-appeal initiate a challenge to a sentence imposed by a trial court; and (3) if a defendant seeks appellate review and revision of a sentence, the State may respond and urge the imposition of a greater sentence without the necessity of proceeding by cross-appeal. * * *This opinion is particularly interesting because it interprets the Indiana Constitution, not using the Debates of 1850, but the more recent documents of the 1960s and early 1970s. For example, from p. 3 of the opinion:
We granted transfer to address whether an appellate court may increase a sentence and whether the State may by cross-appeal initiate a challenge to the trial court's sentence. * * *
1. Imposing Longer Sentences on Appellate Review
We first consider whether an appellate court, in reviewing and revising a criminal sentence pursuant to authority derived from Article 7, Section 4 of the Indiana Constitution, may impose a more severe sentence than was ordered by the trial court. Section 4 provides in pertinent part: "The Supreme Court shall have, in all appeals of criminal cases, the power . . . to review and revise the sentence imposed." In addition to Section 4, Article 7 also includes Section 6, which authorizes the Court of Appeals to "exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules which shall, however, provide . . . to the extent provided by rule, review and revision of sentences for defendants in all criminal cases." * * *
Under the plain language of the Indiana Constitution, the Court is granted the ability to revise a sentence. The word "revise" is not synonymous with "decrease," but rather refers to any change or alteration. With no specific prohibition against increasing a sentence on appeal appearing in the text of Section 4, and the history of the provision indicating that the framers chose to adopt the language of the 1962 ABA Model Judicial Article, which intended to emulate the British system, which at that time authorized the increase or decrease of criminal sentences on appeal, we hold that the appellate review and revise authority derived from Article 4 of the Indiana Constitution likewise includes the power to either reduce or increase a criminal sentence on appeal.
2. The State's Challenge of the Defendant's Sentence on Cross-Appeal
The defendant did not request that the Court of Appeals review or revise his sentence. The State, however, on cross-appeal seeks a remand for resentencing due to the alleged inadequacy of the trial court's sentencing statement and the insufficient length of its sentence or, in the alternative, requests that the defendant's sentence be revised on appeal and a longer sentence imposed.
The State's authority to appeal a trial court's sentencing determination is restricted by Indiana Appellate Rule 7(A), which provides:
A defendant in a Criminal Appeal may appeal the defendant's sentence. The State may not initiate an appeal of a sentence, but may cross-appeal where provided by law.
App. R. 7(A) (emphasis added). The State identifies no provision of law that authorizes it to challenge a sentence by cross-appeal under Appellate Rule 7(A). * * *
We conclude that the State may not by appeal or cross-appeal (a) initiate a challenge to a trial court's criminal sentence that is within the court's sentencing authority or (b) seek appellate review and revision of such sentence. When a defendant requests appellate review and revision of a criminal sentence pursuant to authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution, however, the reviewing court is presented with the issue of whether to affirm, reduce, or increase the sentence. As to this issue, the perspectives of both the defendant and the State will be helpful. Thus, the State's appellee's brief, when responding to such a request for sentence review and revision from a defendant, may, if desired, present reasons supporting an increase in the sentence without the necessity of proceeding by cross-appeal. In the present case, however, the defendant does not seek appellate review and revision of his sentence, and thus the State is precluded from seeking an increase in this sentence.
The judgment of the trial court is affirmed in part and vacated in part, as directed by the Court of Appeals. McCullough, 888 N.E.2d at 1282.
Shepard, C.J., and Sullivan, J., concur.
Boehm, J., concurs and concurs in result with separate opinion, in which Rucker, J., concurs in Part II.
[J. Boehm's concurrance begins:] I concur in Part I of the majority opinion and agree with the portion of Part II holding that the State is not authorized to challenge a sentence by cross-appeal. I also agree with the result reached by the majority, namely that McCullough's sentence remains as entered by the trial court. I reach that result through a somewhat different path.
[ILB Note: I'm not clear as to what is J. Rucker's opinion with respect to Part I.]
When it is necessary to interpret our state constitution, we look to "the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions." [cites omitted]Also interesting, the Court has sent out a press release summarizing the opinion. The ILB has added emphasis:
The text of Section 4 provides no explicit direction as to whether the power to revise a sentence authorizes sentence increases as well as reductions. We thus look to the intent of its framers and the history surrounding its drafting and adoption. Section 4 was part of a constitutional amendment that was ratified by the voters in 1970, to become effective in 1972, as part of the rewritten judicial article, Article 7. The new judicial article, including the appellate review and revise authority, resulted from the efforts of the Judicial Study Commission, created by the Indiana General Assembly to study the needs of the state for revision of the judicial system, to continuously survey and study the judicial system's operation, and to submit suggestions or recommendations for changes to the judicial system. Act of March 3, 1965, Ch. 47, 1965 Ind. Acts 77. The Commission's work on the revised Article began in 1965 and culminated with its 1966 proposal of the new judicial article.
The Indiana Supreme Court today ruled that when a defendant's criminal appeal seeks a sentence reduction claiming that the sentence is inappropriate, the Court may increase or reduce the sentence, or leave it unchanged.
Today's ruling came in a case where the defendant's criminal appeal did not ask for a sentence revision but challenged his conviction on other grounds, and the government responded with a request for the Court to increase the sentence. While expressly recognizing for the first time that the Indiana Constitution gave it the power to increase sentences, the Court held that because the defendant was not seeking a sentence reduction, the government could not seek one either.
The Supreme Court agreed with an earlier decision of the Indiana Court of Appeals denying the defendant's claims, that the sentence is inappropriate and thus affirmed the 2007 Marion County convictions for criminal confinement, battery, and being a habitual offender, and his resulting six-year sentence.
Ind. Decisions - "Mixed ruling gives some tax relief to U.S. Steel" in a case filed under seal
In an 18-page ruling issued late yesterday afternoon, Lake County Assessor, Calumet Township Assessor, and Lake County Property Tax Assessment Board of Appeals v. United States Steel Corp, Judge Fisher wrote:
The Lake County Assessor, the Calumet Township Assessor, and the Lake County Property Tax Assessment Board of Appeals (PTABOA) (collectively, Lake County) appeal the final determination of the Indiana Board of Tax Review (Indiana Board) valuing United States Steel Corporation's (US Steel) real property as of the March 1, 2001 assessment date. Because the pleadings, orders, and other materials in this case have been filed under seal, see generally Indiana Administrative Rule 9, this Court's opinion will provide only that information necessary for the reader to understand its disposition of the issues.This is interesting. The entire case is under seal. The good news is there is no "secret docket" -- the fact that there is a lawsuit, and that there have been various filings, etc. is listed in the public docket -- access a copy here. And the Court's opinion is available online, albeit providing "only that information necessary for the reader to understand its disposition of the issues." Here is the relevant docket entry:
5/25/07 PETITIONER'S MOTION FOR LEAVE TO FILE UNDER SEAL CERTIFIE COPY OF RECORD (2) PROOF OF SERVICE (2) MAIL EDBut there is no indication as to whether a public hearing was held under Administrative Rule 9(H), as set out in this Order of the Supreme Court issued Oct. 10, 2008, in the case of Travelers Cas. & Sur. Co. v. United States Filter Corp, which describes at page 3, "How Rules 9 Works.". It is discussed in this ILB entry headed "Supreme Court orders hundreds of pages of sealed documents in a pending case to be open and available for public inspection." The US Steel case differs from Travelers in that it comes from an administrative entity, rather than a trial court. Still, the ILB is confused ... Should the docket perhaps indicate somewhere that such a public hearing has occurred?
5/25/07 ****RECEIVED: CERTIFIED RECORD OF ADMINISTRATIVE PROCEEDINGS (8) EIGHT VOLUMES ****UNDER SEAL***** ED
5/29/07 ISSUED THE ENCLOSED ORDER:
5/29/07 THE COURT, HAVING CONSIDERED THE SAME AND FINDING IT TO BE WELL-TAKEN, NOW GRANTS THE MOTION, ACCEPTS THE CERTIFIED COPY OF THE INDIANA BOARD OF TAX REVIEW'S RECORD AS FILED UNDER SEAL AS OT THE DATE IT WAS FILED WITH THE CLERK OF THE TAX COURT AND ORDER THAT THE RECORD BE:
1. UNAVAILABLE TO THE PUBLIC AND ACCESSIBLE ONLY TO JUDICIAL PERSONNEL NEEDING ACCESS TO THE COMPLETE RECORD.
2. ALL PLEADINGS, ORDERS AND OTHER MATERIALS FILED BY ANY PARTY OR ENTERED BY THE COURT THAT REVEAL CONFIDENTIAL CONTENT OF THE RECORD SHALL BE FILED AND MAINTAINED UNDER SEAL.
3. THE COMPLETE RECORD SHALL REMAIN UNDER SEAL AND CONFIDENTIAL AND SHALLNOT BE MADE AVAILABLE TO ANYONE UNTIL FURTHER ORDER OF THIS COURT.
THOMAS G. FISHER, JUDGE ED
As for the ruling itself, here is Bill Dolan's report from today's NWI Times:
The Indiana Tax Court issued a mixed ruling Monday afternoon in a long-running multimillion dollar tax dispute between Lake County and U.S. Steel Corp. regarding the company's 2001 tax bill.
Indiana Tax Court Judge Thomas Fisher upheld most of the complex calculations the Indiana Board of Tax Review relied upon two years ago to reduce the tax value of U.S. Steel's Gary Works plant from $269 million to $90 million.
The decision indicates the steelmaker succeeded in arguing its taxes should be reduced because the more than 700 buildings suffer from an inefficient building layout that reduces the plant's value.
The tax court ruling also indicates that U.S. Steel proved the bleak state of the steel industry and other factors reduced its property value in Gary.
The court reversed the tax board's decision that the steelmaker's land values should be reduced because of environmental contamination of the Grand Calumet River, which runs through its property.
County Attorney John Dull said Monday afternoon that county officials will decide soon whether an appeal is feasible.
Neither John Armstrong, a spokesman for U.S. Steel, nor the company's attorneys could be reached Monday for comment.
U.S. Steel paid the 2001 tax bill as calculated by Lake County and could receive a partial refund or future tax credits if the company wins out.
The 2001 tax bill in dispute was the last tax bill determined by local assessors. State lawmakers stripped local officials of their steel mill assessment duties a year later.
Law - "Bankruptcy Boom Is Big Business For Lawyers"
So reported Richard Gonzales of National Public Radio this monring. A quote:
This demand for bankruptcy lawyers comes after they were nearly put out of business four years ago. That's when Congress, at the urging of the credit card industry, changed the law to make it harder for consumers to file for bankruptcy. Bankruptcy filings dropped off dramatically and dried up the field for lawyers, says Shulman.
"I think the credit card companies thought that shutting down bankruptcy by changing the law and making the process almost unmanageable was a key element of what they were trying to do, and it was aimed at making the lawyer's life miserable," he says.
Now, the nation's economic misery is money in their pocket. But Shulman cautions any attorney looking to get rich.
"People attracted to doing consumer bankruptcy work by and large have to have some sympathy for the underdog — not going into law because you think you're going to hit the financial lottery," he says. "It's not the type of practice I think that people will go into thinking, 'This is where I'm going to make my millions.' "
Ind. Courts - "Governor will pick Judge Snow to lead Indiana Alcohol and Tobacco Commission" [Updated]
The Richmond Palladium-Item reports today, in a story by Bill Engle, that:
Wayne Superior 1 Court Judge P. Thomas Snow is expected to be announced today as Gov. Mitch Daniels' choice as chairman of the Indiana Alcohol and Tobacco Commission. Snow has served 20 years on the bench in Wayne County.[Updated} Here is the Governor's press release:
INDIANAPOLIS (February 10, 2009) – Governor Mitch Daniels has appointed longtime Wayne County Judge P. Thomas Snow as the new chairman of the Alcohol & Tobacco Commission.
Alex Huskey, the superintendent of the Indiana Excise Police, has served as interim chair since the resignation of Dave Heath in December. He will return to his role as superintendent.
“Judge Snow brings knowledge of the law and impeccable integrity to our team. Our focus remains on illegal gaming enforcement efforts and continued successful implementation of changes in alcohol and tobacco laws in Indiana,” said Daniels.
Snow has served as Wayne Superior Court 1 Judge since January 1989. He will begin his duties as commission chairman on March 16. He has served as a trial judge representative on the Supreme Court’s Rules of Practice and Procedure Committee and has also served on the Judicial Administration Committee, which has been asked to make recommendations to the Supreme Court on such matters as child support guidelines and weighted caseloads.
Snow has been a Wayne County resident since 1972 and was in private law practice before being elected to the bench. He earned his law degree from Indiana University-Indianapolis and his undergraduate degree from Ball State University.
Ind. Courts - "Inmate delays continue, Gary judge wants answers"
Lori Caldwell has a report today in the Gary Post Tribune that begins:
GARY -- Seven people arrested this weekend should have been in court Monday, but only two chairs were filled when the judge started calling names.
"I want to know the procedure. I want to know why they're not here," Gary City Court Judge Pro Tem Itsia Rivera said.
Problems getting prisoners from the Lake County Jail to Gary City Court has been a continuing challenge since the police department closed its jail Jan. 1.
"If we had our jail we would be handling these people, half of these people don't even need to be transferred, they should be handled right here," Gary City Court Judge Deidre Monroe said Monday.
Monroe said her staff has been making changes to its procedures in an effort to assure anyone arrested in Gary is processed within the time restraints set by law.
"We are using every day of the week to try to give them (county police) as much notice as possible," Monroe said.
But on Monday morning, that didn't happen.
Court pre-trial workers said they called the Lake County Jail and learned the other five had not been transported because they hadn't been booked.
Jail records show all five prisoners -- Roderick Billingsley, Peter Reed, Barbara Gregory, Terrell Hunter and Aaron Brown -- had been processed through the jail in Crown Point, Lake County police spokesman Mike Higgins said.
"If they call the morning they need them, that's not enough time," Higgins said. "They're going to have to ask for them on the midnight shift, because in the morning there is too much activity."
Ind. Courts - "Clark rejects raise for clerk: Circuit judge and council square off again"
Ben Zion Hershberg has this report today in the Louisville Courier Journal. Some quotes:
After a lengthy and sometimes angry debate, the Clark County Council defeated Circuit Court Judge Dan Moore's request for a $4,000 raise for an experienced clerk he has hired since taking office Jan. 1.Here is a list of ILB entries from June of 2008 headed "New judge's hires stir up controversy."
The clerk, Gelsena Smith, has more than 20 years' experience in county and city government and has been a freelance court reporter since 2001, according to documents Moore gave the council yesterday.
"Experience counts," Moore told council members after citing numerous errors in the handling of court documents and schedules by Smith's predecessors.
Councilman Chuck Moore told the judge, "I don't want to call you a crybaby."
Chuck Moore, who is not related to Dan Moore, asked whether errors had happened before when one judge left office and a new one came in.
"It shouldn't have," Dan Moore said.
The judge requested the $4,000 raise for Smith -- which would bring her salary to $32,000 -- for the second time yesterday after the council rejected his request last month.
He said he had gathered additional information to show why the raise was justified.
"I've got a qualified, capable person here," he said.
He said his predecessor, Abe Navarro, fired two experienced clerks when he took office last summer.
If that hadn't happened, Dan Moore said, "those two ladies would be making $31,997" -- about what he wants to pay Smith.
In bringing up the firings, Dan Moore was referring to an incident that embarrassed the council last summer when it agreed to give raises to two people Abe Navarro hired to replace the fired clerks.
They were Navarro's political allies: David Buskill, chairman of the Clark County Republican Party; and Jeremy Snelling, a supporter. [ILB - see below]
After extensive objections from county employees and voters, the council rescinded the raises.
Council President Dave Abbott asked Dan Moore what "didn't you get from our last meeting" when it rejected the raise.
Abbott said the time to seek such raises is in the annual budget process, which begins in September.
He also asked the judge why he had brought a court reporter to last night's meeting to record it.
"I'm making a record," the judge said, adding that he has a right to do so.
Abbott told the judge that he believes that he is planning to file suit against the council if it doesn't approve the raise.
Abbott said "the taxpayers lose" in such a lawsuit because the county would have to pay all legal costs.
Dan Moore said the debate wasn't about a lawsuit; "it's about an experienced person."
Ind. Decisions - "Three Purdue University students who were part of a costly lawsuit over West Lafayette's occupancy ordinance must now foot the bill for more than $52,000 in fines and legal costs"
Sophia Voravong of the Lafayette Journal Courier reports today:
Jill Schuler, Kelly Underwood and Melissa Wood were among five women who lived in a rental home -- owned by Jerry and Patti Weida -- at 112 Sylvia St. during Purdue's 2005-06 academic year.More from the lengthy story:
The city's ordinance allows only up to three unrelated people to live together in areas zoned residential.
A lease the women signed holds them responsible for court-ordered fines that came after a 2007 bench trial in Tippecanoe Superior Court 2, according to the Weidas' attorney, William Kealey.
"Those girls stood up in court and said they lied to me," Patti Weida said Monday. "What can I do if I don't know that I'm being lied to? They signed a lease that said if they did anything to violate it, they would be responsible.
"That's why we have it written in there that they have to abide by all city ordinances. That's why we have stickers on the doors."
In April 2006, the city of West Lafayette filed a civil complaint against the Weidas and all five woman at 112 Sylvia St. for violating its occupancy ordinance. Judge Thomas Busch, who presided over the bench trial, found in favor of West Lafayette and ordered the Weidas pay about $46,900 in fines and attorney fees.Here are some earlier ILB entries in this case, including "West Lafayette looks to clarify 'ambiguous' code" from Jan. 10th.
It was one of three lawsuits filed over alleged code violations by landlords -- mounting the city's legal fees by tens of thousands of dollars to fight the court battles.
Busch's ruling was upheld in December by the Indiana Court of Appeals.
Late last month, Jim Schrier, a Lafayette attorney who represented the city in the occupancy complaints, sent a letter to the Weidas' attorney, giving them 10 days to pay.
Schrier said Monday that deadline was extended because Kealey was out of town. Kealey is hoping to have it further pushed back so that the Weidas can be paid by Schuler, Underwood and Wood.
"Since it is in the city's interest to send a message to the students that overoccupancy is a serious error, we think it makes sense for the city to be patient while the Weidas collect from the students," he said. * * *
Patti Weida said she and her husband, who own several rental properties in portions of West Lafayette largely occupied by Purdue students, have since started taking further steps to prevent overoccupancy.
Students must now sign a form -- in addition to the city's required occupancy affidavit -- that acknowledges they understand the specifics of the ordinance.
But Patti Weida said the ordinance itself is difficult to enforce and includes few guidelines for rental property owners.
"Where do you begin to step on invasion of privacy? How often do they want us to check? What's the criteria?" she said. "If I have to evict someone, I need something that says for sure what I should do.
"Even after going through all of this, I still don't know what to do exactly."
Those guidelines could soon be in writing.
Though the appeals court found that the Weidas were not diligent in monitoring the Sylvia Street home, Judge Patricia Riley also chided West Lafayette's ordinance for "being poorly written ... in places, highly ambiguous."
Ind. Courts - 7th Circuit Judge Harlington Wood Jr. to be memoralized May 8th
The 7th Circuit has announced:
Chief Judge Frank Easterbrook announced that the United States Court of Appeals will be sitting in Special Session at 2 p.m. on Wednesday May 13, 2009 to memorialize Circuit Judge Harlington Wood, Jr. who died on December 29, 2008.Judge Harlington Wood, Jr. passed away on December 29, 2008 at the age of 88. Here is his obituary from the Jan. 2nd Chicago Tribune, and from the Jan. 18th NY Times.
Harlington Wood, second from right, as Abraham Lincoln at New Salem, 1952, with, from left, Sen. Scott Lucas, Vice President Alben Barkley and Illinois Gov. Adlai Stevenson.
Monday, February 09, 2009
Ind. Law - Attorney General has posted an RFP for litigation support services
Access the 16-page RFP here. From the RFP, p. 2:
1.1. INTRODUCTION. The Office of the Attorney General (OAG) is seeking litigation support services and products, as described herein, for its Litigation Division. It is the intent of the OAG to solicit responses to this Request for Proposals (RFP) in accordance with the statement of work, proposal preparation section, and specifications contained in this document.Here is the 28-page Attachment A, which has the details, including, on p. 2:
1.3 PURPOSE OF THE RFP
The purpose of this RFP is to select a vendor that can meet the OAG’s need for litigation support services and products. It is the intent of the OAG to contract with a vendor or vendors that can provide quality services and products for litigation support.
1.4 SCOPE OF WORK AND RFP OUTLINE
This document contains the following information that may be useful to anyone wishing to submit a proposal:
Summary of Scope of Work:
The OAG seeks proposals for the provision of professional litigation support services and products for its Litigation Division. Litigation support encompasses a wide range of services and products that help attorneys and other professional staff acquire, organize, analyze, develop and present evidence throughout the course of litigation. The scope of the litigation support services that are being sought through this RFP are fully described in Attachment A of this document.
The Litigation Division of the Indiana Office of the Attorney General (INOAG) isFor a list of the AG's current contracts, check here.
seeking to replace and/or extend its current litigation support services and
products. The services that are currently provided by Litigation and IT staff help
attorneys and paralegals acquire, organize, develop, and present evidence
throughout the course of litigation, from pre-filing investigation, through
complaint, discovery, trial, post-trial briefs, and the appeals process.
These services include:
• Document image scanning, database management and administration
• Litigation support image-enabled database creation
• Information management
• Database design and coding
• Transcript databases, and transcript summarizing
• Electronic discovery design and implementation
• Trial presentation design and implementation
• Software selection, administration and training
• Ensure that electronic records are being collected, indexed and retained according to INOAG’s policies
• Respond to requests for finding specific documents and e-mails in backup and storage based on context
• Retrieve data from all variety of devices
• Restore data and present it in native format
• Enforce legal holds on data destruction
• Production of electronically stored information (ESI)
Type in "00046" in the "Agency" box. Check "Professional/Personal service".
Your will get a list of the AG's contracts and amendments, with links to the documents. Unfortunately, many of the amendments listed do not include the text of the original contract, so the reader can have no idea of actual terms.
Law - Above the Law reports: "Locke Lord Bissell swapping Lexis for Lois"
Very interesting. Read it here.
And ISBA members here in Indiana have the option of using Casemaker in much the same way. Free access is a benefit of ISBA membership.
Ind. Decisions - Transfer list for week ending Feb. 6, 2009
Here is the transfer list for the week ending Feb. 6, 2009. It is three pages long.
No transfers were granted last week.
Five years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Law - This week at the General Assembly - Week 5
Bryan Corbin's weekly "Legislative Notebook" report appears today in the Evansville Courier & Press.
Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)
For publication opinions today (1):
In State of Indiana v. Jason B. Brown , a 7-page opinion, Judge Kirsch writes:
Jason Brown was charged with operating a motor vehicle after his driving privileges had been suspended for life, a Class C felony. Brown filed a motion to suppress evidence obtained as a result of his alleged unconstitutional detention. The trial court granted the motion, which effectively precluded further prosecution. Pursuant to IC 35-38-4-2(5), the State appeals, raising the following issue: whether the initial stop and detention of Brown constituted unreasonable police activity in violation of Article 1, section 11 of the Indiana Constitution. We affirm. * * *NFP civil opinions today (2):
The State contends that the trial court erred in granting Brown's motion to suppress. Specifically, it contends that Deputy Lennartz's request for identification was reasonable police activity under Article 1, section 11 of the Indiana Constitution because the interaction between Brown and Deputy Lennartz was a consensual encounter. As such, the State contends that all evidence obtained during the stop should be admissible. * * *
The State contends that Deputy Lennartz's encounter with Brown was reasonable since the Deputy did not stop Brown. Instead, Brown stopped himself by pulling into the lane and parking his truck. The State also argues that Deputy Lennartz's purpose in approaching Brown was reasonable since he merely wanted to relay to Brown the need for the partygoers to be quiet. The request for Brown's driver's license arose only after Deputy Lennartz noticed Brown's nervousness. The State offers that, while nervousness may be insufficient to support reasonable suspicion, Finger v. State, 799 N.E.2d 528, 534 (Ind. 2003), here there is no need for reasonable suspicion to validate Deputy Lennartz's encounter with Brown since the encounter was neither a stop nor a detention. * * *
By his late arrival, Brown could not have been the subject of the initial complaint. The trial court concluded, “Given that the Defendant had not yet arrived at the party when the officers had informed the persons present at the party of the noise complaint, the Court does not find that there was any need to interact with the Defendant and thus no need to ascertain his identity.” We agree. We cannot say that the State sustained its burden of proving that the suppression order was contrary to law. Affirmed.
In the Matter of K.H. v. Elkhart Office of Family and Children (NFP) - " A thorough review of the record leaves this Court convinced that the trial court’s judgment terminating Father’s parental rights to K.H. is supported by clear and convincing evidence. Accordingly, we find no error. "
Tony D. Camp v. Lily A. Camp (NFP) - "IC 31-17-7-4(a) excludes from distribution all property acquired by either spouse in his or her own right after final separation. Consequently, to the extent the trial court included cattle born or acquired after the date of final separation, the trial court erred. However, there is no evidence in the record to indicate how many cattle were included in the value of the marital cattle. Further, the parties stipulated to the value of the cattle, within fifty cents of each other, and that was the valuation used by the trial court. Accordingly, there is no showing of prejudice. "
NFP criminal opinions today (5):
Environment - More on: NIPSCO: Disposal of coal ash in NW Indiana safe [Updated]
Updating this ILB entry from Jan. 18, where Gitte Laasby of the Gary Post Tribune reported that NIPSCO is the only coal ash generator in NW Indiana and that it does not use coal ash ponds, Laasby reported in a lengthy story yesterday, Feb. 8th, on NIPSCO's coal ash disposal in the Town of Pines area. Some quotes:
[Peggy Richardson, a Pines resident since 1968] lives less than half a mile from Yard 520, a landfill owned by Brown Inc. For three decades, NIPSCO stored coal ash from its Michigan City generation station there. The ash was left over from coal burned to produce electricity.Here is a list of earlier ILB entries referencing the Town of Pines.
At the time, no one was aware that coal ash contained contaminants, such as boron and molybdenum. They
didn't know it could leak from landfills into groundwater. NIPSCO said the coal ash was deposited in settling ponds and reused or disposed of in accordance with regulations at the time. There were no state or federal laws on how to store it.
Senior residents in Pines, like Jan Nona, recall the sandy gray ash was dumped as fill in low-lying areas in the hilly, rural town when residents asked for it.
"The roads all over town are nothing but fly ash," Nona said. "You can go down any street and somebody either has it in their driveway or the street."
Today, the dark gray mass covers the tree-lined streets, driveways and back yards across town. It's even on a playground.
In 2000, Pines resident Phyllis DaMota smelled and tasted something unusual in her well water. She reported it to the Indiana Department of Health, saying her water "smelled like a beauty shop."
When the Indiana Department of Environmental Management and the U.S. Environmental Protection Agency tested wells in the area, they found high levels of boron and molybdenum in 30 wells and in Brown Ditch, a creek that flows northeast through Pines to the Indiana Dunes National Lakeshore.
While some boron and molybdenum occur naturally in groundwater and soil, NIPSCO and Brown acknowledge the groundwater contaminants may be associated with the disposal of coal ash in Yard 520 or with the town's and county's reuse of ash in roads or as fill.
NIPSCO and Brown forged an agreement with the EPA in 2003, promising as "potentially responsible parties" to pay for an extension of municipal water from Michigan City to 130 residences on private wells within an area designated as a Superfund Alternative site. Seventy-seven residences, including Richardson's, still receive biweekly deliveries of bottled water paid for by the companies. Boron levels in her well were more than twice EPA's action level.
In 2004, NIPSCO and Brown agreed to extend municipal water to another 140 residences.
NIPSCO spokeswoman Colleen Reilly said the two companies agreed to work on the project and pay for an investigation of the contamination to avoid a long process of getting the area on the list of Superfund sites -- the most contaminated places in the nation.
"It moved immediately into working toward the remedies and going into the remedial investigation so we were able to move much more quickly," Reilly said. "There's a stigma associated with a community on a Superfund list."
The Superfund Alternative approach uses the same investigation, cleanup process and standards as for sites listed as Superfund sites, but allows the EPA to move faster than with a regular Superfund site, which normally takes a year to a year and a half to get on the priority list for funding, EPA Region 5 spokesman Mick Hans said.
But residents are still frustrated with the nature of the process and the lack of progress.
[Updated 2/12/09] A related story on the TVA's disposal of coal ash today in the Lexington Herald-Leader. It begins:
KNOXVILLE, Tenn. -- Long before a coal ash spill deluged a rural neighborhood, the Tennessee Valley Authority was spreading million of tons of waste byproducts from its coal-fired power plants across the landscape - as recycled building materials.
"Yes, we are taking these materials and we are reducing the amount that goes into disposal and beneficially reusing them. They are good products in the manufacturing process," said Mike Sutton, who heads TVA's coal byproducts marketing group.
The nation's largest public utility, responding to a request from The Associated Press, reported Wednesday that it sells about a third of the 7 million tons of fly ash, bottom ash, gypsum and boiler slag generated by its 11 coal plants each year.
Another 20 percent is reused in construction projects on TVA sites.
Over the years, TVA's coal byproducts have ended up in concrete for roads and bridges, concrete blocks for buildings, gypsum for wallboard, granules for roofing shingles and grit for sandblasters. The ash also has become filler material for recreation areas, ball fields and industrial parks.
Ind. Law - "It's the Law: Be wary of tinted windows, extra lighting"
Ken Kosky's NWI Times' "It's the Law" column for today, looks at vehicle add-ons, like lighting and tinted windows. Some quotes:
A lot of people add perfectly-legal accessories to their vehicles, like remote starters or bug shields. But other add-ons -- like tinted windows, extra lighting and even window stickers -- could get a person pulled over by police.
Window tinting, for example, comes in legal and illegal shades. Indiana law states it is illegal to have windows "tinted to the extent or manufactured in a way that the occupants of the vehicle cannot be easily identified or recognized through that window from outside the vehicle." * * *
The law does allow dark tinted windows if they're needed for medical reasons, as long as the person carries a doctor's note with them. Violations are less frequent than they used to be because most shops know not to install illegal tints, Kuehl said.
People should also be careful when adding additional lighting to their cars, because it is illegal to put on lighting that could be confused with the emergency lighting used by police officers, firefighters and medics.
It is also illegal to drive around with the headlights that are on a pickup truck's roll bar activated. Indiana law stated headlights must be between 24 to 54 inches off the ground.
Indiana law also requires people to drive safe, well-maintained vehicles. This is accomplished through requirements calling for things like exhaust systems, windshields, windshield wipers and lights. * * *
Motorists also need to be careful stickers they put on their car windows don't obstruct their view on the windshield, side windows or rear window. Indiana law prohibits "non-transparent material" covering the window, with the exception being a sticker of less than 4 inches on the windshield.
Ind. Courts - "Local officials vie for ND Ind. U.S. attorney post"
Dan Hinkel and Marisa Kwiatkowski report in the NWI Times today:
HAMMOND | A Lake Criminal Court judge, a Democratic insider and a former Indiana attorney general are among those interested in nabbing the area's coveted U.S. attorney position.Here are earlier ILB entries on filling the post from Nov. 7, 2008 and Dec. 28, 2008.
The U.S. attorney is the U.S. Justice Department's top lawyer and prosecutor for the Northern District of Indiana, which encompasses Northwest Indiana, South Bend, Fort Wayne and Lafayette. The person holding that post supervises 33 assistant federal prosecutors and a support staff of about four dozen.
In the Hammond-based Northern District, the U.S. attorney's office has been particularly active in large-scale drug and firearms violations and has pursued public corruption in Lake County, an effort that has resulted in the conviction of more than 50 public officials since the mid-1980s.
It is an appointed position selected, by tradition, by the senior U.S. senator of the same party as the president. The choice is officially selected by the president and confirmed by the U.S. Senate.
Acting U.S. Attorney David Capp declined comment this week when asked if he would be interested in extending his time as U.S. attorney.
Local Republican lawyer and politico Joe Hero endorsed Capp, a Democrat who has worked under Republicans.
"He's got the experience and the training," Hero said. "He knows about all the investigations that have been going on."
Lake Criminal Court Judge Thomas Stefaniak Jr. also has interest in the post. Stefaniak said his experience as a prosecutor and private lawyer lend themselves to the U.S. attorney post.
"I believe I could have great impact on crimes that are committed, investigated by law enforcement and ultimately prosecuted," he said. "I believe that it is important to look at evidence law enforcement agencies bring, evaluate the evidence and to follow that evidence wherever it may lead, regardless of who is being investigated."
Stefaniak has been practicing law since 1988. He held several positions within the Lake County prosecutor's office before his successful election in 1995 to Hammond city judge on the Democratic ticket.
Stefaniak was appointed as Lake Criminal Court judge in 2001. He also serves as the chairman of the Indiana Judicial Administration Committee, which tackles workload measures for judges throughout the state.
Gary-based attorney Karen Freeman-Wilson, a former Indiana attorney general, said she would be interested in the job if it were offered. She also has served as Gary city judge as a Democrat and ran unsuccessfully for Gary mayor.
Democratic insider Jim Wieser, a Schererville lawyer, said he remains interested in the post.
Wieser was on the bottom floor of Barack Obama's campaign in Lake County. He also was instrumental in getting a judge to order early voting centers open in Hammond, Gary and East Chicago, a key to Obama's success in Lake County and his eventual victory in Indiana.
Wieser confirmed participating in conversations with several officials about the job, but told The Times he has heard nothing recently from the Obama administration.
He suspects, however, that the confirmation this week of Attorney General Eric Holder could quicken the U.S. attorney appointment process. He said he expects an appointment by late February or early March.
Ind. Decisions - "Cloverdale victorious in three-year lawsuit"
The Jan. 27th Court of Appeals decision in the case of Simon Fire Equipment & Repair, Inc. v. Town of Cloverdale, Indiana (NFP) (see ILB summary here, 4th case) is the subject of a story today by Shannen Hayes in the Greencastle Banner Graphic that begins:
CLOVERDALE -- The town of Cloverdale came away victorious after a three-year lawsuit with an Iowa firm concerning the purchase of a fire truck.
On Jan. 27, the Indiana Court of Appeals issued a decision agreeing with the Putnam County Circuit Court's June 2008 finding that there was "no evidence that the town acted in bad faith."
Cloverdale was found innocent of breaching a contract with Farley, Iowa-based Simon Fire Equipment and Repair to purchase a fire truck for an estimated $229,990.63.
In 2001, the town made a move to start a Cloverdale Fire Department. It began a bidding process to purchase one fire truck from Simon Fire. A resolution was signed by all five council members, with four voting to purchase the 2001 demo fire truck.
The council accepted a bid subject to favorable financing. A written confirmation accepting the bid of Simon Fire and the price of the vehicle was made in 2005.
It came down to a bond issuance, which was voted down 3-2 a short time later. Rural development funds were considered, but would have obligated the town to repay $213,000 at a rate of 4.125 percent for 20 years. That was in addition to a $37,650 grant from the U.S. Department of Rural Development.
Don Sublett, current town council president, admitted those conditions would have put the town in financial distress for decades.
"It would have been irresponsible for that (2005) council to commit money that far in the future (2025)," he said.
By Dec. 13, 2005, the council decided in a split decision to return the $25,000 bid check to Simon Fire and to void the deal.
Simon Fire first filed suit against the town in May of 2006 in Iowa for expenses and lost revenue of $60,585, alleging a breach of contract. That suit was dismissed, but re-filed later in Putnam County Circuit Court.
A bench trial was held in June 2008 with the verdict going in favor of the town.
Courts - Could Chicago's 7th Circuit Judge Wood be in line for Supreme Court?
Abdon M. Pallasch of the Chicago Sun-Times had this article in the Sunday paper. Some quotes from the lengthy story:
She seems to be at the top of many handicappers' lists -- just as she was 14 years ago when President Bill Clinton had a chance to fill an opening on the federal appellate court in Chicago.This is much more in the story.
Judge Diana Pamela Wood, 58, has spent the last 14 years going toe-to-toe with the legendary conservative lions of Chicago's 7th Circuit Court of Appeals, Richard Posner and Frank Easterbrook, and her fans say she could ably fill the shoes of Ruth Bader Ginsberg on the moderate-liberal wing of the U.S. Supreme Court.
Wood often finds herself the lonely dissenter on three-judge panels, arguing that atheists should be able to challenge the mostly-Christian prayers Indiana legislators use to open their sessions, that a gay Wisconsin teacher should be able to sue for alleged discrimination, that a Jewish condo dweller should be able to sue for discrimination when the building makes her take down her mezuzah, or that Indiana voters should not have to show ID to vote.
Conservatives dominate here in the 7th Circuit, which includes Illinois, Wisconsin and Indiana. Wood, sometimes in the majority, other times in dissent, has taken the pro-choice side in three high-profile cases that could become lightning rods for conservatives if she is President Obama's first nominee for the U.S. Supreme Court. * * *
Obama and Wood were senior lecturers at the University of Chicago law school together, like Posner and Easterbrook. They travel in the same circles.
Former Clinton White House Counsel Abner Mikva, who recruited her for her current seat, is a trusted adviser to Obama, recommending the names of potential judges. Other Obama friends from the U of C's law school, such as Cass Sunstein, are considered favorites for the state high court, but if the so-called "female seat" is the first to open up, Wood's chances increase.
"She's a logical choice," said attorney Tom Geoghegan, who has appeared before Wood. "If I were Barack Obama and I were looking for someone who's going to fit in his mold of a not terribly ideological, very intelligent judge who's not going to get him in trouble politically because she's very smart and careful, she'd be somebody I think he would go with."
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:*
This Wednesday, Feb. 11th:
2:00 PM - DLZ Indiana, LLC, et al vs. Greene County, Indiana, et al - In this appeal, DLZ Indiana, L.L.C. appeals from the trial court's grant of partial summary judgment in favor of Greene County, Indiana on the issue of whether DLZ had a joint venture relationship with United Consulting Engineers, Inc. DLZ contends that it did not have a joint venture relationship with United. Greene County contends that such a relationship existed or, in the alternative, that DLZ and United are nonetheless jointly and severally liable to Greene County for damages stemming from an Agreement for Design Services. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Indiana Supreme Court Courtroom]
This Thursday, Feb. 12th:
2:30 PM - D. M. vs. State of Indiana - The Appellant appeals his adjudication as a juvenile delinquent after a trial court admitted something into evidence that a school teacher seized from his jacket. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Indiana Supreme Court Courtroom]
This week's oral arguments before the Court of Appeals that will NOT be webcast:
* ILB note: As of now, the 2009 COA webcasts, both live and archived, may be accessed here.
Sunday, February 08, 2009
Ind. Law - Is the State of Indiana violating the Constitution in its use of Military Park?
Article 15, Section 9 of the Indiana Constitution reads:
Section 9. The following grounds owned by the State in Indianapolis, namely: the State House Square, the Governor's Circle, and so much of out-lot numbered one hundred and forty-seven, as lies north of the arm of the Central Canal, shall not be sold or leased.The "out-lot" was known in 1850 as the Military Parade Ground and today is called Military Park.
Citizen-activist Clarke Kahlo has issued a press release challenging the leasing of Military Park during the summer for various events. He sends along a compelling photo of the fenced-in "public" grounds. Some quotes from the release:
The Indiana Lincoln Battalion for the Public Trust, an Indianapolis-based citizens’ group, is challenging the state’s practice of leasing Military Park, which is expressly prohibited by Article 15, Section 9 the Indiana Constitution. * * *My thoughts. I've lived downtown for over 30 years and have watched the creation of White River Park and the revitalization of the downtown Canal. And I've watched Military Park gradually emerge from a "no-man's" land to a pleasant oasis of grass and trees in the downtown scene.
“It remains to be seen how the Park Commission might be able to justify its leasing of Military Park which essentially privatizes the public park for much of the summer. While we’re aware that the Commission schedules many popular events at Military Park, we believe it’s essential to obey Indiana’s constitutional requirements. Absent legal justification, the Park Commission should offer other venues within [White River] park for leased events.
And then I've seen that all change again, watched White River Park become the site of one construction project after another, watched the Canal become a narrow corridor walled on both sides by commercial building, and now I'm watching Military Park spend most of the summer months over the past few years chain-link-fenced off for "special" events (such as the mass barbecue ribs sale that used to be held in the parking lot of the Murat Theatre).
Kahlo also sent along another photo that shows just how scarce green space has become downtown. There is a very narrow strip of property left along the Canal which many would like to see remain green. It is just west of the north state parking garage and directly across the Canal from the Indiana History Center. It is difficult to imagine it as the site for another hotel, but that plan apparently is under consideration, according to the flier.
The Debates of the 1850-51 Constutitional Convention show that the same division of opinions existed nearly 160 years ago.
From the Indiana Constitutional Debates, Vol. II, p. 1978 [p. 972 of PDF]
Mr. NILES moved to amend by inserting a provision to the effect that the Legislature shall have no power to sell the block in the centre of Indianapolis, known as the "Governor's Circle." I make this motion (said Mr. Niles) because I observe that the Legislature is assailed every year with importunities to sell, or give away the Governor's Circle; and my desire is, that the public grounds within this city shall be preserved as a beautiful ornament to the town and the State.
Mr. RARIDEN moved to amend the amendment of the gentleman from Laporte, by striking out the word "not," so that the Legislature may be empowered to sell the Governor's Circle, if they should deem it proper to do so.
Mr. KELSO. I am in favor of the amendment of the gentleman from Laporte, as I understand there is a proposition now before the Legislature, to devote that ground to the purpose of building a monument upon it in memory of our soldiers who fell in Mexico. Such a clause inserted in the Constitution, would rather sanction the appropriation of it to such a purpose, and I am decidedly in favor of devoting it to that purpose. * * *
Mr. MILLER of Gibson. It seems to me that the provision ought to include all the public grounds ; and unless a provision to that effect be inserted in the Constitution, take my word for it, they will be disposed of by the Legislature.
From the Indiana Constitutional Debates, Vol. II, p. 1996 [p. 990 of PDF]
TIPPECANOE BATTLE GROUND.
The section in relation to the inclosure and preservation of the Tippecanoe Battle Ground was read a third time.
The question being, " Shall the section pass?"
Mr. MAGUIRE moved that it be re-committed to a select committee of three, with instructions to amend so as to provide that the State shall never sell the military ground at Indianapolis. * * *
From the Indiana Constitutional Debates, Vol. II, p. 2005 [p. 999 of PDF]
Mr. BADGER. Mr. President, I move to recommit this article to a select committee of three or five gentleman, with instructions so to amend as.that the Legislature shall be authorized to sell the Governor's Circle, and the lot known as the Parade Ground, No. 147, for the best price they can obtain, and appropriate the proceeds of such sale to the use of common schools, in the several counties in this State.
I make this motion from two considerations: first, they are yielding the State no profits, but, on the contrary, are an expense; and secondly, it should be our duty, in bringing about a system of free schools, which, in my opinion, will very soon become universal over the State, to bring all possible resources to bear, so that the masses -who are already taxed heavily, shall have the smallest possible additional embarrassment.
I am aware of strong objections to this move, but, sir we should not forget that it is a virtue to cultivate that very necessary ingredient, in a public servant - ECONOMY.
And, if by this means, we can add a few thousand dollars to our common school fund, the undertaking will be a laudable one.
If this amendment should be the means of educating and developing the otherwise hidden intellectual powers of but one man, the end will abundantly justify the means; for remember, sir, that knowledge is power - that a virtuous and an enlightened" people can never be enslaved, nor is there any earthly power that can bind down the mighty energies of the human soul, nor rivet the chains of slavery on an intelligent people, who feel that they are free, and know that they are immortal.
I do hope, sir, that the article may be re-committed with the instructions which I now offer.
Mr. NILES. I hope, sir, that the amendment offered by the gentleman from Putnam, will not be. adopted. That gentleman has been consistent in his desire to increase and protect the school funds. But it would be a strange movement on the part of this Convention, after refusing to do anything with a view to save the school funds from utter loss, to order the sale of the public grounds in this city, for the sake of the little pittance which they would bring. We lose twice as much every year, on account of the bad system of managing the school funds, as all the public grounds in this city would sell for; but if they would bring an hundred thousand dollars, I should be only the more anxious to have them protected from sale by the Constitution. Public squares and parks in cities are hardly second in their humanizing influences to public schools. Who would be willing to fill up the public grounds of large cities with brick and mortar? Such a policy would be a greater injury to the present and succeeding generations than could be repaired by adding an hundred times their value to school funds.
Mr. WOLFE demanded the previous question. The demand for the previous question was Seconded.
The question being taken on the re-commitment of the section, with the instructions as proposed by the gentleman from Putnam,
It was not agreed to.
Ind. Law - More on "Key to safe-haven law is spreading the word"
This ILB entry from June 26, 2008, headed "Key to safe-haven law is spreading the word," quotes from Lesley Stedman Weidenbener's report on Indiana's Safe Haven Law:
Since Indiana enacted the law, the National Safe Haven Alliance has recorded six lives saved in the state and 20 illegal abandonments, of which at least seven were fatal.Today, more than 7 months later, a story by John Tuohy in the Indianapolis Star reports:
The Indiana Safe Haven Law allows mothers to drop off their babies, anonymously and with no questions asked, at any firehouse, police station or hospital within 45 days of birth.More from the story:
Yet Natalie is one of only six babies to have been legally abandoned in Indiana since 2001. During that same time, 22 babies in Indiana were abandoned illegally, and seven of them died.
Advocates and experts say mothers don't take advantage of the law because they don't know about it. If more people were aware of it, they say, a 17-year-old Lawrence Central High School student who recently dropped off her newborn in 9-degree weather might have made a different decision -- and might not be facing criminal charges.Indiana's Safe Haven Law is found at IC 31-34-2.5.
"There's not enough education about this out there, and we really haven't gotten it into the classroom like we should," said Bob Floyd, president of the Indiana Safe Haven Alliance.
State Sen. James W. Merritt Jr., R-Indianapolis, one of the authors of the Safe Haven Law, said he's disappointed the program has yielded such scant results.
"I'm frankly surprised when someone does use Safe Haven," Merritt said. "It is so hard to get the message through to kids today because there is so much information going through their filters."
Merritt is launching a publicity campaign to increase the law's visibility. It includes a public service announcement and, in acknowledgment of the law's grim purpose, stickers that would be slapped on trash bins.
While some states, such as Illinois, require signs that explain the law in all police stations, firehouses and emergency rooms, Indiana does not. But juvenile court Judge Marilyn Moores said she doubted how effective that would be.
"If they see the sign, they're already there and have made a decision," Moores said. "I'd like to see posters in schools. That is where they'd be most effective."
Indiana's public schools do not require students to tell teachers when they are pregnant, and pregnancy counseling is voluntary, said Jason Bearce, a spokesman for the state Department of Education. There also is no requirement for schools to educate children about the Safe Haven Law.
In Indianapolis Public Schools, education about the Safe Haven Law is not part of any formal curriculum or informal educational effort, said Kim Hooper, an IPS spokeswoman.
"I've never seen a sign in any school," she said.
Merritt would like to see schools do more.
Beyond greater awareness, though, Moores sees another problem with the Safe Haven Law that she said might discourage teens from using it: the requirement that a mother drop off her baby in person.
"Most of these young mothers don't have a car, a license or even access to transportation," said Moores, who wants mothers to be allowed to call an ambulance or police car to pick up their babies. "In addition, it is probably too much to ask them to trudge to a fire station after they just gave birth."
But Merritt sees problems with that change.
"The mothers have 45 days to make a decision, plenty of time to find out how to get to the hospital," he said. "It gives them time to think about what they are doing one last time rather than calling an ambulance right away, and then there's no turning back."
Ind. Gov't. - Trash contract issues at both ends of state
"Judge dumps city's new trash contract" is the headline to this story by Jon Seidel in the Gary Post-Tribune that begins:
The Gary Sanitary District's attempt to privatize trash collection last fall was "against the laws and public policy of the State of Indiana," a special judge ruled this week, rendering its contract with Allied Waste "null and void.""Plan for Clark Solid Waste District questioned" is the headline to this story by Be Zion Hershberg in the Louisvllle Courer Journal that begins:
Judge Thomas W. Webber made his ruling in Lake County Superior Court in response to a class-action lawsuit filed by the Miller Citizens Corp., whose members were upset that Allied Waste got the business without a public bidding process.
The head of the Clark County Solid Waste District has questioned whether the agency's board has the authority to privatize its operations.
"The district was established by statute in 1990," Executive Director Sharon Marra said.
In correspondence sent to district board members recently, Marra said, she noted the statute and asked board members to determine whether they have the right to contract out recycling, hazardous-waste collection and other duties for which the district was created by the General Assembly.
County Commissioner Mike Moore, who is president of the Solid Waste District board, last month proposed contracting with Inland Service Corp., which picks up recyclables for the district, to staff its office on Ind. 62 in Charlestown and to collect and dispose of hazardous wastes.
"I believe we are fine" legally, Moore said, explaining that he has spoken with the district's lawyer and the county attorney about his proposal.
He plans to ask the district board at its meeting Wednesday to issue a request for proposals from Inland and other companies interested in providing such services to the county, Moore said.
The board won't be violating the state law establishing such districts if it approves his plan, Moore said, because it simply will be contracting with Inland or another company for services now provided by district employees.
Saturday, February 07, 2009
Courts - "Computer virus shuts down Houston municipal courts"
From the Houston Chronicle, a lengthy story by Bradley Olson, Melissa Vargas, and Dale Lezon that begins:
Houston shut down part of its municipal court operations Friday, cancelling hearings and suspending arrests for minor offenses after a computer virus infected hundreds of its machines. City officials said they expected the problems to extend at least through Monday.
Court offices will remain open to allow people to pay tickets and fines, but the dockets will have to be reset, a move that will affect thousands of cases, city officials said.
It was unclear Friday how the virus got into the system, but officials promised a thorough investigation. They could not say when they hoped to have the virus removed from the city network.
The disruption cascaded through city departments, leading police to temporarily abandon making some arrests for minor offenses. Officials also briefly disconnected the Houston Emergency Center. Although some emergency communications, such as dispatching, are routed through the center, police experienced no major disruptions, officials said.
By Friday afternoon, officials said the virus appeared to be contained to 475 of the city’s more than 16,000 computers. But the problems it caused grew so severe that city officials made an emergency purchase order for up to $25,000 to bring in Gray Hat Research, a technology security company that began trying to eradicate it through the early morning hours Friday.
“We’re working as hard as we can on it,” said Richard Lewis, the city’s information technology director. “This is a complex matter. We’re not sure what virus has attacked us. It’s going to probably be days.”
The compromise of the city networks dealt another blow to the municipal court computer system, which has been beset by problems almost as soon as it went live in April 2006.
The $10 million effort by Maximus Inc. to bring the court’s activities online was immediately troublesome to judges, clerks and prosecutors and delayed court proceedings in 2006. After threatening litigation, the city reached a $5 million settlement with Maximus and may seek another vendor.
Ind. Law - 6th Circuit wine shipping ruling boosts home delivery
Another great "Uncorked" column on wine shipping today by Dan and Krista Stockman of the Fort Wayne Journal Gazette. It begins:
There has not been much good news lately for wine lovers in Indiana who would like to have wine shipped directly to their homes. But on Christmas Eve came the glimmer of a possibility.Here are links to ILB entries on the 6th Circuit and 7th Circuit opinions.
On Dec. 24, the U.S. 6th Circuit Court of Appeals struck down Kentucky’s state law that required you to go to the winery in person before you could have wine shipped to your house.
Why is that a big deal, since this is not Kentucky?
It matters because in August the 7th Circuit Court of Appeals upheld Indiana’s face-to-face requirement. That means there are conflicting opinions from two appeals courts, making it much more likely the U.S. Supreme Court will step in and make a decision.
There had always been the possibility of one of the cases being appealed to the Supreme Court, but there was no guarantee the court would hear the case. Now, that chance is much improved.
More from today's column:
The whole debate began in 2005, when the Supreme Court said state laws that let in-state wineries ship directly to buyers but prohibit out-of-state wineries from doing so are unconstitutional.Today's column concludes:
Indiana’s law prohibited out-of-state direct shipments and vaguely hinted that in-state shipments might be illegal, too, but state regulators had allowed in-state shipments for decades. After the decision, however, state officials suddenly claimed all shipping was illegal.
Several attempts to change the law, a few court cases and an appeal have brought us to where we are today: The Hoosier State allows most wineries, in and out of state, to ship directly to Indiana customers, if the winery gets a permit and there is a face-to-face transaction with the customer first. So if you want to order a bottle of hard-to-find pinot noir from Oregon, you have to go there first and the winery has to decide it’s worth getting a permit and dealing with another state’s paperwork and rules.
The appellate judges who upheld Indiana’s law seemed to have emptied a few bottles before they made their decision. They claimed that because West Coast wineries are closer together than those in Indiana, the law does not discriminate against out-of-state wineries because the cost for travel to wineries could be lower. [Emphasis added by ILB] * * *
In the Kentucky case, the court rightly said forcing consumers to travel to the winery first discriminates against out-of-state wineries and gives in-state wineries an unfair advantage. It also noted that it gives Kentucky’s wholesalers an unfair advantage, which particularly pleased us because it is the wholesalers that have fought against wine lovers’ interests the hardest in all of these cases.
Bloomington’s Dr. Allen Dale Olson, who started the group VinSense (www.vinsense.org) to lobby for common-sense wine laws, points out that not only is there no guarantee the Supreme Court will take up the matter, but there is no way to know how it will rule on the question, especially because the makeup of the court has changed since the 2005 decision.Here is a list of all ILB entries on wine shipping.
“I don’t know where these two new guys stand,” Olson said. “And who knows what the composition of the court will be when this comes around.”
There’s also little chance of Indiana changing its law in the meantime, as legislative leaders have said they will not consider any alcohol bills this session. That’s not entirely bad news because getting a bill through the General Assembly is dicey.
The legislators that claim to be pro-small business, pro-family business, pro-agritourism and pro-farm suddenly forget all about that when the liquor lobby trots out its tired, red-herring argument that direct shipping will increase minors’ access to alcohol. We’re sure that sudden about-face never has anything to do with the hundreds of thousands of dollars the $34 billion-a-year wholesaling industry makes in political contributions each year. Nothing at all.
Ind. Decisions - "Library loses a round in Court of Appeals"
The Court of Appeals decision Friday in the case of Indianapolis Marion County Public Library v. Charlier Clark & Linard P.C. and Thornton Tomasetti Engineers (see ILB summary here) is the subject of a brief, unattributed story today in the Indianapolis Star:
The Indiana Court of Appeals on Friday upheld a trial judge's ruling eliminating negligence claims against firms involved in the Central Library project.
A six-week trial is set to begin March 9 in Boone County on still-active fraud claims being pressed by the Indianapolis-Marion County Public Library against a New York-based engineering firm, Thornton Tomasetti, and its managing principal.
The library has settled with several firms as it seeks damages for problems with the Central Library's underground garage that halted the project and were blamed on faulty design and construction work. The building reopened in December 2007 nearly $50 million over budget.
In March, a summary-judgment ruling by Special Judge Matthew Kincaid narrowed the library's remaining claims. He ruled the library couldn't press negligence claims against Thornton Tomasetti, its managing principal, and Charlier Clark & Linard, an inspection firm.
Friday's appeals court decision affirmed Kincaid's ruling, but appeals Judge Elaine B. Brown dissented on the Thornton Tomasetti claims.
Library attorney Robert Daniels said the Library Board would review its appeal options but is prepared to move forward with next month's trial on the fraud claims.
Ind. Law - Celebrating Abraham Lincoln's 200th birthday
"Lincoln lands celebrating: Three states share claim to legacy" is the headline to this story by Seth Grundhoefer in the Louisville Curier Journal. Some quotes:
Thursday's not a federal holiday, but many state and national parks in Kentucky, Indiana and Illinois will treat Abraham Lincoln's 200th birthday as if it were.James Glass, director of the Division of Historic Preservation and Archaeology, Indiana Department of Natural Resources, has a very interesting column in the Indianapolis Star today about Abraham Lincoln's "visits to Indiana after he left for Illinois in 1830. Much is known about his boyhood days in Spencer County, but many people are not aware that the future president returned to our state several times."
The three states each claim the 16th president as their own and will conduct memorials to honor the life of the 16th president of the United States and the time he spent in each region.
"The Indiana Supreme Court is partnering with the Indiana State Bar Association to host a statewide birthday bash for Abraham Lincoln.." For details, check here.
Environment - "Environmental Views, Past and Present "
The NY Times has a lengthy and balenced article today, authored by John M. Broder, Andrew C. Revkin, Felicity Barringer, and Cornelia Dean, that goes through "environmental and energy policies that encompass land, air, water, wildlife and climate," discussing where Obama may "build on the work of his predecessor, rather than taking it apart."
Tom Goldstein of the SCOTUSBlog had this report yesterday, headed "EPA moves to dismiss Clean Air Act case, reversing Bush Administration policies." A quote:
However, in 2005, the EPA promulgated the Clean Air Mercury Rule (CAMR), which created a national emissions cap and trade program to meet mercury reduction requirements and delisted power plants as a source category, applying “plant-specific standards of performance.” The EPA had not, as it conceded in its petition, made the health and environmental impact findings required by the Act at Section 7412(c)(9) to remove a source category, but argued that the new cap and trade program would make the old regulations neither “appropriate” nor “necessary” for power plants. The court of appeals agreed with the petitioners that the delisting rule was contrary to the plain text of the Act and vacated both of the EPA’s rules.For related links, see this post from How Appealing.
This motion to dismiss presents a fairly radical policy reversal for the EPA, which in its petition for certiorari had argued that the original agency finding on power plant regulations was “seriously flawed” and that mercury emissions would not present a public health hazard with the cap and trade program. The EPA under the Bush administration argued strongly for the market-based emissions allowance trading program as the most cost-effective measure to reduce air pollutants and, further, that Congress intended for the agency to have discretion to make alternative regulations for power plants.
Ind. Law - "County has close eye on pole-barn plan: Tighter approval process after similar plan cost $23K in legal fees"
Kevin Leininger has this report in the Fort Wayne News-Sentinel:
Normally, an application to erect a pole barn would barely get noticed.For background, see this long list of ILB entries on the earlier pole barn dispute.
But when the application conjures up memories of a controversial project that has cost Allen County taxpayers more than $23,000 in legal fees, officials are sure to pay close attention.
They're doing just that with Travis Guisinger's application to build a pole barn at the northwest corner of Dunton and Hathaway roads, to be followed by a house within two years.
Jeff and Tammy Rice had a similar plan in 2004 when they built a 3,600-square-foot “garage” at 11915 Auburn Road, which they told county planners would be followed by construction of their $225,000 dream house. But when construction of the house lagged, the county planners who had approved the project ordered Rice to tear down the pole barn, the size and style of which had drawn criticism from nearby neighbors.
The Rices fought the demolition order, and in 2006 the Indiana Court of Appeals ruled in their favor - but not before the county had racked up a sizeable legal bill.
Kim Bowman, executive director of the Department of Planning Services, said large lots near the proposed site means the proposed building would not be close to other homes. The proposed 65-foot-by-70-foot project is different in at least one other significant way, she said.
Where the Rice's project was approved without a hearing, construction of Guisinger's storage-only pole barn would require the Board of Zoning Appeals to issue a variance following a public hearing. Should the BZA choose to do so, she said, it could require Suisinger to post a bond or make approval of the pole barn subject to the house's construction, meaning failure to do so could place the barn in violation of the variance.
Guisinger, golf pro at Orchard Ridge County Club, said he would be willing to make such assurances if necessary.
Ind. Decisions - "New Albany strip club infringed on Horseshoe's trademark"
Grace Schneider reports today in the Louisville Courier Journal:
A federal judge has ruled that a New Albany strip club's use of the name II Horseshoes and a golden horseshoe logo amounts to trademark infringement on nearby Horseshoe Casino.
U.S. District Judge Sarah Evans Barker signed a consent judgment and issued a permanent injunction this week ordering John Mattingly, the owner of II Horseshoes Gentleman's Club on Old River Road, to stop any use of the Horseshoe name or its trademarked golden horseshoe.
The court also ordered Mattingly to remove the image from any advertising and promotional material, including signs, banners, cocktail napkins, clothing, business cards and receipts. * * *
The casino took Mattingly to U.S. District Court in New Albany in late December, accusing the business owner of lifting the casino company's name and horseshoe logo in violation of federal trademark protections.
Separately, the opening of the club -- inside the former Rustic Frog bar and restaurant -- shortly after Thanksgiving caught New Albany officials off guard.
The City Council on Monday night unanimously approved a first reading of a new adult-entertainment ordinance to restrict business hours and set licensing requirements for the new club and other future cabaret businesses.
Mattingly has since indicated to city officials that he expects to call the business Rustic Frog Gentleman's Club. * * *
Barker agreed that II Horseshoes' use of the horseshoe logo was likely to confuse the public and could give the impression that the club is affiliated with or sponsored by the Harrah's Entertainment-owned gambling operation.
Each party was ordered to pay its own court costs and attorneys' fees, despite the casino's request for actual damages and a share of profits derived from the infringement.
Environment - More on "Techniques that have dramatically reduced contamination at beaches in Racine, Wis."
Gary and Porter beaches were among the cleanest public beaches in Northwest Indiana in 2008.For more information, see this IDEM page.
Wells Street, Marquette Park and Lake Street beaches exceeded the allowable limit for E. coli bacteria only once each during the 2008 beach season, test data shows. * * *
The Indiana Dunes State Park and Hammond Marina's West beaches were also among the top six cleanest even though Indiana Dunes' east beach tested above the limit twice as often as in 2007.
The Indiana Department of Environmental Management presented the data at a Northwestern Indiana Regional Planning Commission committee meeting Thursday.
The fine print is, the Gary beaches were only tested once a week. By comparison, Indiana Dunes State Park, Hammond and Whihala beaches were tested daily.
The results mirror the number of beach closures, but it generally takes a day to get E. coli test results, so local beach managers sometimes close beaches as a precaution.
East Chicago beaches, which ranked in the bottom six, were tested five times a week. Buffington Harbor had the highest number of exceedances -- on average, one every three days. That's up nearly two thirds compared to 2007.
Ind. Courts - Bill to elect St. Joe Superior Court judges moves out of committee
Ed Ronco reports in the South Bend Tribune:
A bill that would require that St. Joseph County Superior Court judges be elected, rather than appointed, took an unprecedented step forward this week.
House Bill 1491, authored by state Rep. Craig Fry, got unanimous approval from the House Committee on Courts and Criminal Code this week.
It’s the first time such a bill — introduced year after year in some form or another — has made it through a committee and onto the floor, said Fry, D-Mishawaka. * * *
Superior Court judges in St. Joseph and Lake counties are appointed by the governor using a process called merit selection. Voters can decide whether to retain the judges or boot them from the bench at the end of six-year terms.
The measure would set up nonpartisan elections for Superior Court judges in St. Joseph County only.
“The so-called merit selection system, and I submit that that’s a misnomer, puts judges effectively in lifetime tenure,” St. Joseph County Prosecutor Michael Dvorak said.
Retention elections have never resulted in a jurist being removed from the bench.
“When no judge is ever defeated in that system, you have no accountability,” Dvorak said. “So the merit selection system for the sake of having judicial independence gives up judicial accountability. To have good jurists, you have to have both.”
State Rep. Jackie Walorski, R-Jimtown, is expected to offer an amendment Monday that would cap the amount of campaign contributions judges could receive when running for office — a move designed to assuage fears that electing judges could lead to corruption and graft, she said.
Amendment or not, the bill is a bad idea, said Michael Scopelitis, chief judge of the St. Joseph County Superior Court. * * *
In addition to retention elections, judges are evaluated by the local Bar Association and are subject to disciplinary action and citizen complaints. Scopelitis said there’s a movement statewide to expand merit selection to other counties, and that the bill is designed to let the air out of those tires.
“I think there’s more of an urgency on their part to push this kind of legislation through, to try to stop the momentum of those who would have merit selection,” he said. * * *
Of Indiana’s 92 counties, 87 have direct elections of judges. Allen and Vanderburgh counties have nonpartisan elections, and Marion County has a totally different process, known as slating.
But just because St. Joseph County’s system is in the minority doesn’t mean it should be counted out, said John Lloyd, who takes over as president of the Bar Association in July.
Merit selection “strikes the proper balance between judicial independence and accountability,” Lloyd said.
“The system that we have was a reform from the early 1970s that has worked,” he said. “There’s no reason to change what’s already working.”
Ind. Courts - Judicial Center's Legislative Update #4
Here is the Indiana Judicial Center's Legislative Update, current through Feb. 6th -- a good way to keep on top of court bills, and bills impacting criminal and civil matters.
Friday, February 06, 2009
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
In Indianapolis Marion County Public Library v. Charlier Clark & Linard P.C. and Thornton Tomasetti Engineers, a 34-page, 2-1 opinion, CJ Baker writes:
Appellant-plaintiff Indianapolis-Marion County Public Library (Library) appeals the trial court?s entry of summary judgment in favor of appellees-defendants Charlier Clark & Linard, PC, (CCL), Thornton Tomasetti Engineers (TTE), and Joseph G. Burns (collectively, the appellees). Specifically, the Library argues that the judgment entered for the appellees on its negligence claims was erroneous because those claims were not barred under the economic loss doctrine as espoused by our Supreme Court in Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind. 2005). Concluding that the trial court properly granted summary judgment for the appellees because the economic loss doctrine precludes the Library from recovering under these circumstances, we affirm. * * *In Alexa Whedon v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
In light of our discussion above, we conclude that the negligence claims that the Library brought against the appellees are subject to the economic loss doctrine and are “best relegated to contract law” in accordance with Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind. 2005). Moreover, the purported exceptions to the economic loss doctrine do not apply. As a result, the trial court properly entered summary judgment for the appellees on the Library's negligence claims. The judgment of the trial court is affirmed.
BAILEY, J., concurs.
BROWN, J., concurring in part and dissenting in part with opinion. [which begins, on p. 29] I respectfully concur as to the majority's conclusion that summary judgment was properly entered in favor of CCL. However, I disagree with the majority's conclusion that summary judgment based on the economic loss doctrine was appropriate as to TTE.
Following her conviction for murder, Alexa Whedon appeals the post-conviction court‘s denial of her petition for post-conviction relief. Specifically, Whedon contends that the post-conviction court erred in determining that she failed to meet her burden of proving her newly discovered evidence claim and in excluding expert testimony during the post-conviction hearing about incentivized witnesses and wrongful convictions. Concluding that the post-conviction court‘s finding that a witness‘s testimony was not worthy of credit is not clearly erroneous and that the expert‘s testimony was not helpful to the trier of fact and was an improper comment on the credibility of the witnesses, we affirm the post-conviction court.In Marc A. Schumann v. State of Indiana, an 8-page opinion, CJ Baker writes:
Appellant-defendant Marc A. Schumann appeals the ten-year sentence that was imposed following his guilty plea to Arson,1 a class B felony. Specifically, Schumann maintains that the sentence is inappropriate because the record demonstrates that the parties and the trial court originally intended that he would serve a portion of the sentence with the Indiana Department of Mental Health (DMH). However, because the trial court ultimately determined that Schumann was to serve his entire executed sentence in the Indiana Department of Correction (DOC), he maintains that we should “exercise [our] authority to revise [the] sentence and enter a . . . sentence of ten years or less, fully suspended.” Appellant’s Br. p. 10. Finding no error, we affirm the judgment of the trial court.NFP civil opinions today (0):
NFP criminal opinions today (7):
Ind. Law - Golf cart legislation's future unpredictable at this point
The ILB has had a long list of entries on golf carts and the issue of whether they may be legally driven on city streets and highways. You can see the history if you simply scroll through the list of headings.
This most recent entry, from Jan. 11th, was headed "Golf carts bills are in the legislative hopper."
Now this news*, via Ed Feigenbaum's Indiana Legislative Insight:
[F]ollowing all manner of inquiries from local government units and their attorneys, a patchwork quilt of local ordinances popping up around the state, attention focused to the issue over the Summer and past several months by the Indiana Law Blog, and judicial challenges to traffic violations, the Indiana State Police issued a news release a several months ago (that some effectively considered to be the functional equivalent of a non-rule policy document) explaining the legal status of operation of golf carts on public streets and roadways. * * *The Senate bills are SB 199 (Delph) and SB 291 (Steele). Both have been assigned to Homeland Security and neither has been heard.
Some lawmakers have responded to their constituents on this issue and niggling related concerns. Sen. Brent Steele (R) and Mike Delph (R) file separate bills that would effectively allow golf carts (equipped with headlights and brake lights) to be registered and operated on certain local roads, except when banned by a town or city. * * * Other lawmakers, including Rep. Bill Davis (R), have filed and are advocating golf cart-specific House bills.
* Reprinted with permission from the upcoming Feb. 9, 2009 issue of Ed Feigenbaum's Indiana Legislative Insight.
And at this point none of these bills appears to be scheduled for next weeks' committee hearings.
Ind. Law - "It's the Law -- 'Deadly force' can be justified against burglars, carjackers"
Ken Kosky's NWI Times' "It's the Law" column for Jan. 19th, which the ILB somehow missed, looks at deadly force:
If someone breaks into your house or tries to carjack you, you can use "deadly force" to protect yourself and the people you are with.For more, see this Oct. 1, 2008 ILB entry, headed "When deadly force is justified."
Indiana law is clear on the matter, stating it is legal for a victim to use deadly force against a perpetrator, and that the victim does not have a duty to retreat "if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage (property) or occupied motor vehicle."
Porter County Prosecutor Brian Gensel said the thought that "a man's home is his castle" is well established, and he's not aware of any states that restrict a person's right to defend it. Indiana law is perhaps stronger than some states, since it doesn't require a person to "retreat" when faced with a burglar, Gensel said.
"The law is fairly clear -- you're justified in the use of deadly force," said Porter County Prosecutor Brian Gensel.
Gensel said homeowners and car owners must, however, keep in mind that their force must be reasonable.
For example, it is reasonable to use deadly force against a burglar in your home or someone trying to forcibly carjack your car from you, Gensel said.
But you can't shoot a burglar who is on the street, running away from your home. And you can't shoot someone who is cutting through the corner of your yard. And if you leave your car running while you go in a gas station to pay for gas, you can't legally fire shots at the thief who is driving away with your car, Gensel said.
The "reasonable" argument also carries over to matters like fights. The law generally allows a person to use equal force or one level of force greater to protect themselves. So a person attacked with a knife could use a gun against the perpetrator, but a person who is shoved by someone could not legally shoot them.
"The response generally has to be commensurate with the threat," Gensel said.
And although Indiana law eliminates criminal liability if someone acts responsibly in using deadly force, the person could possibly be sued in civil court. Gensel said the burden of proof is less in a civil case and a jury could find the act of deadly force to be unreasonable.
In addition, the ILB has been following a case in Jeffersonville invloving alleged "road rage." The most recent entry is here, from July 22, 2008. See also this entry from June 21st and related linked.
Law - "Small Firms Targeted by Con With Fishy Fees"
This con appears to be a more sophisticated version of that practiced on individuals for years, often lured by emails from West Africa.
Petra Pasternak's report today in The Recorder begns:
Oakland, Calif., attorney Dana Sack is glad he didn't deposit that $360,400 check he got in the mail Jan. 30.
Since the start of the year, the real estate attorney has been contacted "out of nowhere" by eight companies, most from East Asia, asking for help collecting money they claimed to be owed by U.S. businesses. The inquiries came from well-known companies like Japan's Tomen Corp. and Matila Manufacturing in Singapore. Sack signed fee agreements with four. "We were always in a position to say maybe this is a scam, but until they do something screwy, we should treat them honestly," said Sack, of the five-lawyer Sack Rosendin firm. "We get a lot of calls off our advertising all the time."
Turned out the screwy came real soon: Sack found himself on the receiving end of a scam.
About a week after signing those fee agreements, "Tomen" and "Matila" separately let him know by e-mail that Eagle Power Equipment had agreed to pay each of them through his firm, and though he had done no work, Sack should expect a check in the mail, from which he could deduct his retainer. One $360,400 check arrived by UPS from Ontario, "looking absolutely genuine."
"I've had clients from Taiwan and Hong Kong who I've never laid eyes on, and collected unclaimed property for them without any trouble," Sack said. But when a call to Citibank proved this check was invalid, Sack called Eagle Power Equipment. He said he got a laugh from that company's controller, who said he was not only not paying any debts to Tomen, but that he'd been getting calls from small firm lawyers across the country.
Ind. Courts - Still more on "St. Joseph County Probate Judge to issue pay raises despite council's objections"
Probate Judge Peter Nemeth was true to his word Thursday, serving St. Joseph County Council members with a court order to approve pay raises for his employees.
The judge had warned council members last month at a council meeting that he would use his judicial mandate power to give the raises, after the council cut the proposed raises from his court's 2009 budget.
The cut was the second time in two years the council denied the raises, and Nemeth added that his employees were earning far less than their counterparts in other St. Joseph County courts.
"I think it's unfortunate and very serious," he said Thursday of the council's actions. "That's why I have taken the step I have."
When reached by phone Thursday, County Council President Rafael Morton said he was not surprised by the order, in that the judge made his intentions "very clear" during prior meetings.
"State law gives judges that option," he said. "It's statute."
Indiana Supreme Court trial rules allow judges to override county council spending decisions if judges deem them essential to administer justice.
The council members have met with their legal council [sic] about the issue, Morton said, and right now are looking at all alternatives in order to take their next step. Morton could not say whether the council would comply with or contest the order.
In the papers served Thursday, the order also listed other expenses that also were denied, such as court building, repair, structural and contractual services costs.
"Those purchase requisitions denied ... are necessary and essential to the operation of the juvenile system in St. Joseph County," the order reads.
Ind. Courts - Marion County reportedly suspends bench warrants for delinquent parents
This ILB had this entry Tuesday, Feb. 3rd, thanks to a WTHR Ch. 13 story. Today Jon Murray of the Indianapolis Star has this front-page story, headed "Marion County judges revise policy on use of bench warrants." Some quotes:
More deadbeat parents could get away with skipping child support payments under a new policy limiting judges' ability to issue arrest warrants, the Marion County prosecutor says.More from the story:
Marion Superior Court has purged more than 4,100 noncriminal arrest warrants issued by judges directly from the bench. The warrants often targeted parents who shirked child support and witnesses who ignored subpoenas to testify in court. Until now, all faced the risk that a traffic stop could be enough to land them in jail.
Court officials said their research has caused them to question whether Indiana law even permits bench warrants, which also are coming under scrutiny elsewhere in Indiana.
Their decision still allows an alternative type of warrant, typically used in contempt proceedings. But critics say that option lacks teeth.
"This order essentially creates a situation where all we can merely do is invite a person to come to court," said Marion County Prosecutor Carl Brizzi, whose lawyers file thousands of civil actions each year to force fathers and mothers to catch up on child support.
Supporters say the change recognizes the goal of getting absent witnesses and others in front of a judge without violating their right to due process.
When people have an outstanding bench warrant against them, a traffic stop for running a red light or speeding is likely to alert an officer to the warrant, resulting in an arrest on the spot.
Until now, few had questioned the entrenched use of bench warrants in some courts for such noncriminal situations. This week, Brizzi asked Indiana Attorney General Greg Zoeller for an advisory opinion on whether state law allows judges to issue them. Brizzi hadn't received an answer Thursday, and Zoeller's spokeswoman declined to comment.
Presiding Judge Robert Altice said he also wants the attorney general to look into the issue. He leads the four-judge executive committee that made the policy change last month.
"I think the whole system's naked without that tool," Altice said. "But it's something we want to make sure we do right."
[J]uvenile court Judge Marilyn Moores, said she understood prosecutors' frustration and said the legislature may need to craft a remedy. She found that judges across the state use a hodgepodge of bench warrants and the alternative now being urged, called a writ of body attachment.Murray also has this side-bar on "Warrants vs. Attachments":
In Marion County, some judges already use body attachments, but the court handling the bulk of contested child-support cases has relied heavily on bench warrants. * * *
The new policy doesn't affect arrest warrants issued when someone is charged with a crime or when a defendant out on bail fails to show up for hearings.
Judge Robyn Moberly, whose civil court handles some cases involving child support, said she has long relied on body attachments instead of warrants. She said the targeted person usually shows up.
"My sense is that it is essentially effective, without the danger of throwing somebody into jail," she said.
When a Marion Superior Court judge issued a bench warrant -- a dozen or more times a day -- the sheriff's Civil Office received it. Deputies then could serve the warrant in person, but more often they simply entered it into a computer system accessible to police across the state when they conduct traffic stops.
The Civil Office handles the alternatives the court has turned to -- called body attachments -- differently, Capt. Norman Buckner said. It first mails a notice with a date for people to turn themselves in, or surrender. When recipients report in, officers escort them to court.
But if a recipient ignores the notice or the address is incorrect, Buckner said, there's no backup like the computer system for warrants. He said officers could try to find such people and detain them briefly, but only on a token basis.
Judges can issue a body attachment immediately in cases where the person ignores a subpoena, but sometimes the process is more cumbersome. State law requires that when people fail to show up or ignore a court order such as payment of child support, they must be given a second chance to attend and explain themselves.
The judge then could hold them in contempt and sentence them to jail.
Not Law but interesting - Indy Star error, complete with photo
The ILB rarely veers off course, but was amazed this morning to see a familar Indianapolis landmark misidentified (or mislocated) in the Indianapolis Star. The item does not appear to be online, but is at the bottom of the front page of what is now called the Metro + State section.
"How would you like to become the talk of the town?" is the headline., followed by text on the left, plus a nice color photo of the historic Kemper House on the right.
The Kemper House is located at 1028 N. Delaware. It used to be painted white and some call it the "wedding cake" house.
It is owned by Historic Landmarks Foundation of Indiana and it is, and this was news to me this morning, for sale for $449,900.
However, it is NOT the the Historic Landmarks headquarters, which it the point of this entry. Today's Star story says that the foundation needs volunteers to lead walking tours and continues:
Those interested can stop by Historic Landmarks headquarters (right), 340 W. Michigan St., from 10 to 11:30 a.m. Tuesday.Well, if they stop by the pictured Kemper house, they will be at 1028 N. Delaware, rather than at the Historic Landmarks headquarters, which IS located at 340 West Michigan Street.
Thursday, February 05, 2009
Ind. Courts - "Suggestions on how you can use Doxpop more productively in these economically challenging times"
At Doxpop, we understand that our nation's economy is creating challenges for your business. However, we also believe that the challenges we all face represent an opportunity for progressive businesses to excel and move ahead of their competition. We want to help you be one of the businesses that not only survives, but thrives all the way through to an economic recovery. Below are several ideas for how you can use Doxpop to get better results for your business even as you reduce expenses.
Ind. Law - More on "Bill allows DNA from felony arrestees"
Updating this ILB entry from Feb. 1st, the State of Washington is concerning a similar bill. Here is a report from the Wed. issue of the Seattle Times, headed "Controversial measure would require DNA sampling at arrest," reported by Jennifer Sullivan. Some quotes:
OLYMPIA — Suspects arrested in cases as minor as shoplifting would have to give a DNA sample before they are even charged with a crime if a controversial proposal is approved by the Legislature.From the Tacoma News Tribune, this story by Joseph Turner reports:
State criminal defense groups and the American Civil Liberties Union say the House bill is unconstitutional. It would mandate that police or jail staff collect DNA from all adults and juveniles arrested on suspicion of a felony or gross misdemeanor.
More than a dozen states already allow law enforcement to collect DNA from suspects before they are convicted. Three more states, including Washington, are considering such proposals this year. * * *
A separate bill in the Senate also would allow for DNA collection before conviction — but only after formal charges are filed. * * *
The DNA would be submitted to the State Patrol and the FBI databases, which are used to match suspects with unsolved crimes. Under the bill, authorities would destroy samples and DNA profiles obtained from people who weren't charged, were found not guilty or whose convictions were overturned.
Miloscia said each DNA test costs $82. A rough estimate shows the program could cost $1 million over two years.
Miloscia suggested that the state could apply for federal money to help cover the cost, and legislative staff said fees charged to certain criminals also could offset the cost. Prosecutors, however, said only a small percentage of those ordered to pay the fees actually do.
Jack King, staff attorney for the National Association of Criminal Defense Lawyers in Washington, D.C., said his organization has been fighting similar DNA-collection proposals since 2004.
"DNA samples reveal the most personal, private information about a person's physical and mental makeup," King said. "It is terribly unfair to an arrestee."
King said he believes that seizing biological evidence before conviction violates constitutional protections against unreasonable search and seizure.
Rep. Mark Miloscia, D-Federal Way, prime sponsor of the DNA sampling bill, said 15 other states and the federal government already have laws that allow authorities to collect DNA from suspects after their arrest.
HB 1382 also would set up a funding mechanism to pay for the collection and processing of DNA samples. The bill would levy a 5 percent surcharge on all traffic offenses and a 10 percent surcharge on all fines levied on criminal defendants, which would raise about $3 million a year. Police and sheriff’s departments would be reimbursed for their costs of collecting samples, and the state crime lab would get a regular source of money to put DNA markers into a database.
Even though Washington courts now charge defendants $100 to pay for their DNA swabs, only about 10 percent ever pay because that fine is at the bottom of the priority list of their financial obligations, according to the governor’s budget office.
Ind. Courts - "Logansport indecent exposure case dismissed again"
Kevin Lilly's report in the Pharos-Tribune begins:
For a second time, the Cass County prosecutor’s office had to dismiss a case against a Logansport man who allegedly “mooned” two children.
Deputy prosecutor Jim Chovanec handled the case against 43-year-old William Elpers, who was charged with class C misdemeanor indecent exposure for allegedly showing his buttocks to two children last year. In a statement given Tuesday, Chovanec said the decision to drop the charge resulted from respecting the wishes of the children’s parents.
“The investigator talked to the children, who were scheduled to give a deposition before trial, and the father indicated that the parents did not want to put the children through any rigors of a trial,” Chovanec said.
Elpers was arrested on April 5 and initially set for a bench trial in September. The prosecution dropped the charge the first time on the day before trial because the children, the only witnesses, could not be found to testify.
Environment - "Techniques that have dramatically reduced contamination at beaches in Racine, Wis."
Laurie Wink has an interesting article today in the Michigan City News-Dispatch:
Beach advisories and closings at Racine's North Beach went from 62 in 2000 to only one last year, said Julie Kinzelman, with the Racine Health Department. She shared successful beach management strategies at a public meetings in the city council chambers Wednesday night. Mayor Chuck Oberlie, chair of the environmental management policy committee of the Northern Indiana Regional Planning Commission, invited Kinzelman to address the NIRPC committee today.
Indiana has cause for concern about beach water quality, with the state ranked second in the number of beaches exceeding national standards in a 2006 study. In the study, Washington Park beaches were the third highest among all Indiana beaches.
Michigan City could take a financial hit if public beaches are seen as too risky to visit, Kinzelman said. And water quality monitoring is critical to public health as more people use the Great Lakes beaches.
Monitoring involves measuring E. coli levels as indicators of contamination. Besides human and animal waste, E. coli comes from beach sand and seagulls. High E. coli levels can cause stomach aches, diarrhea, skin rashes and respiratory infections, she said. Children are particularly vulnerable because they take in twice as much water as adults when they're swimming, Kinzelman said.
"Swimming is essentially communal bathing," she said. "When you're ill you shouldn't be swimming."
The federal Clean Water Act requires each state to monitor and notify the public of water quality on coastal beaches. Indiana requires water testing two days a week. The La Porte County Health Department uses monitoring data to make decisions about beach closings here. Most E. coli monitoring tests take up to 18 hours to produce results, said Kinzelman, who now is studying a new testing method that produces results in several hours. An ongoing problem, Kinzelman said, is figuring out the key sources of the contamination.
"About 90 percent of beach closing actions are caused by unknown sources," she said. "It's not just what happens at the beach, but also what happens in the watershed."
Three approaches worked in Racine to reduce the numbers of closings due to high E. coli readings. One of the easiest was changing the beach grooming strategy to create deeper grooves, almost like furrows plowed in a farm field, Kinzelman said. Racine added lined waste cans with lids, to cut down on bird scavenging. Volunteers planted dune grass in drainage areas to absorb waste water.
Racine also passed an ordinance prohibiting feeding shore birds, Kinzelman said, but a lot of public education is needed to make it effective.
A more costly but effective approach is to re-engineer storm water systems that feed into the beaches and lake water. Al Walus, general manager of the Michigan City Sanitary District, said Kinzelman's information will be useful to the Trail Creek Watershed Steering Committee in helping to pinpoint sources of E. coli in the Trail Creek system.
Ind. Decisions - Tax Court decides one
In Belterra Resource Indiana v. Ind. Dept. Rev., a 7-page opinion issued 2/4/08, Judge Fisher concludes:
In this light, the subject transaction may seem suspicious: title to the Miss Belterra was transferred to Belterra in international waters immediately after Pinnacle acquired it. Belterra, however, explains that it was necessary for Pinnacle to contract for the construction and purchase of the riverboat because Pinnacle “had the access to the capital and relationships with lenders necessary to engage in the construction of a multi-million dollar riverboat such as the Miss Belterra.” (Plant Aff. ¶ 2, May 11, 2007.) The Department has offered no evidence to controvert that claim. Because Belterra’s stated business purpose is facially valid, the Court concludes that Belterra’s transaction was not a sham.
Conclusion. For the foregoing reasons, Belterra is not subject to use tax on its acquisition of the Miss Belterra. Accordingly, Belterra’s motion for summary judgment is GRANTED, and the Department’s motion for summary judgment is DENIED.
Courts - Justice Ruth Bader Ginsburg undergoes surgery [Updated]
According to MSNBC, she was operated on for early stage pancreatic cancer.
[Updated] Some news reports are now appearing:
"Justice Ginsburg undergoes surgery for pancreatic cancer" by Joan Biskupic of USA Today.
"Ginsburg Hospitalized for Pancreatic Cancer" in the NY Times.
"Ginsburg Has Surgery for Pancreatic Cancer" by Adam Liptak of the NY Times.
"Justice Ginsburg Has Cancer Surgery" by Nina Totenberg and Melissa Block of NPR. Comprehensive coverage.
"Call Off The RBG Retirement Watch, Before It Starts" is a thoughtful essay by Tom Goldstein of the SCOTUSLaw blog.
Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)
For publication opinions today (3):
In Michael Davis v. Review Bd. of the Indiana Workforce Development, and Parkview Health System, Inc., a 10-page opinion, Judge Friedlander writes:
Michael T. Davis appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (the Review Board) denying him unemployment benefits. Davis presents the following restated issue for review: Is the Review Board’s finding that Davis voluntarily left his employment with Parkview Health System, Inc. (Parkview) without good cause contrary to the law and the evidence? We affirm.In Alton Moss v. State of Indiana , a 12-page opinion, Judge Riley writes:
Contrary to Davis’s assertions on appeal, the relevant inquiry is not whether he was “at fault” for his demotion. Rather, the Review Board appropriately looked to whether Parkview acted fairly and reasonably in demoting Davis. Davis’s demotion was clearly justified by ongoing substandard work performance, and Davis has failed to establish that the terms of the alternative position offered him were unreasonable under the circumstances. Parkview did not act so unreasonably or unfairly as to compel a reasonably prudent person to quit work. Therefore, we affirm the Review Board’s determination that Davis voluntarily terminated his employment with Parkview without good cause in connection with the work. Judgment affirmed.
Appellant-Defendant, Alton Moss (Moss), brings this interlocutory appeal of the trial court's denial of his motion to suppress evidence in a prosecution against him for felony murder, Ind. Code § 35-42-1-1(2), and conspiracy to commit robbery while armed with a deadly weapon, a Class B felony, I.C. §§ 35-41-5-2, 35-42-5-1. * * *In Mercho-Roushdi-Shoemaker-Dilley-Thoraco Vascular Corp. v. James W. Blatchford, III, M.D. and Eve G. Cieutat, M.D., a 22-page opinion involving enforcement of non-competetion agreements, Judge Riley writes:
Issue. Whether the trial court‟s denial of Moss‟ motion to suppress was supported by sufficient evidence. * * * On appeal, Moss argues that the trial court should have granted his motion to suppress because, at the time of his initial incriminating statement, he was being illegally detained, in violation of his rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. * * *
Based on the foregoing, we conclude that the trial court's denial of Moss' motion to suppress was supported by sufficient evidence.
In sum, Blatchford and Cieutat cite the live or affidavit testimony of seven Terre Haute doctors who believe that enforcement of the non-competition agreements would have tended to injure the Terre Haute community. MRSD has failed to direct us to any conflicting evidence that it designated to the trial court. Because MRSD has not designated any evidence contradicting Blatchford and Cieutat’s own evidence that tends to show that enforcement of the non-compete clauses would have been contrary to public policy, we affirm the trial court’s conclusion that the non-compete clauses are unenforceable. * * *NFP civil opinions today (0):
Based on the foregoing, we conclude that the trial court did not err in granting summary judgment in favor of Blatchford and Cieutat regarding the enforceability of the non-compete clauses, nor did the trial court err in granting summary judgment in favor of MRSD on Counts I-VII of Blatchford and Cieutat’s Complaint. Affirmed.
NFP criminal opinions today (4):
Ind. Gov't. - Yet more on: Issues continue with state's new welfare eligibility system
The welfare modernization program that the Daniels administration has so adamantly defended against mounting criticism will finally take a much-needed timeout, at least partially.
The new head of the state Family and Social Services Administration, Anne Murphy, has decided to halt the rollout of the automated eligibility determination system in the 33 counties where it's not yet in place. She says the FSSA wants to make sure its private contractor is capable of handling the load in those counties, which include Indianapolis and contain the majority of the more than 1 million Hoosiers receiving benefits.
Murphy has met with many concerned parties, from recipients to legislators, since taking over the helm from Mitch Roob in December, FSSA spokeswoman Lauren Auld said.
"The secretary is addressing some of the challenges clients and providers have brought to our attention and trying to make sure people are getting the services they're eligible for," Auld said.
Ind. Gov't. - "Internet provider forces local agencies offline"
Keith Roysdon of the Muncie Star-Press has this report today, which points up something to think about:
MUNCIE -- The local United Way and Chamber of Commerce are working like it's 1999 this week because of massive information technology failures, and officials are frustrated that their IT provider isn't returning their phone calls.
The Web site for the Muncie-Delaware County Chamber of Commerce has been off-line for days and the United Way is relying on primitive technology -- phones and fax machines -- because its e-mail and Web site are down.
Officials are blaming Phoenix Technologies, which has also been targeted for performance failures in Grant County.
"Ultimately, they'll have to answer for what happened," said Gary Chenault, president and CEO of United Way of Delaware County. * * *
The disruption for Web sites and e-mail systems began Friday or over the weekend, when Phoenix Technologies customers ranging from the Chamber of Commerce to Marion General Hospital received e-mails notifying them of a switch in servers. People who received the e-mail told The Star Press they thought the disruption would be relatively brief.
But Marion General Hospital's Web site was down all weekend, said hospital spokesman Randy Deffenbaugh. The Internet site was working this week.
Users trying to reach www.muncie.com -- the Web site for the Chamber of Commerce -- on Wednesday got a "site under construction" page.
The United Way site shows an "address cannot be found" page.
Chamber official Terry Murphy emphasized the concern that prospective customers and developers looking for information about Muncie and Delaware County would reach a dead end.
"We're always working with prospects and they need to be able to get information," Murphy said.
The chamber is working to recover with help from other providers, as is United Way, where Chenault said, "The loss of any device that allows you to communicate -- and we're in a communications world -- you're going to be impacted by it."
Wednesday, February 04, 2009
Ind. Decisions - Apparently none from the Court of Appeals today
Apparently no opinions again today from the Indiana Court of Appeals, making two days in a row. This may portend a slew of them the end of the week.
[Update] Seems like I no sooner posted the above that I received this note from a reader who, like many attorneys I know, reviews every opinion issued each day with care:
I really don't get the push to get a bunch of opinions out at the end of the month (you saw the last couple of days of January) then none or very few for the first week of the month. Why not have a rule that says no more than 4 published and 10 NFPs can be issued on any day? Something is to be said for giving everyone time to digest what is coming down.ILB: Might be a good idea, but I'd suggest it be an internal policy.
Law - More on avoiding tax problems
On Jan. 24th the ILB linked to a useful article providing a step-by-step description of what you have to do to comply with the requirements imposed on household employers by federal and state law.
Today that same writer, Ron Lieber of the NY Times, has another good column, this one headed "How to Avoid a Tom Daschle Tax Problem ."
Also interesting is this Feb. 3rd NY Times column by Catherine Rampell, headed "How Common Is Tax Evasion?" It begins:
So far three of President Obama’s high-profile nominees have acknowledged that they failed to pay some income taxes they owed, and two have already pulled out of contention as a result. Does this high hit rate in the pool of Obama picks likely mean that tax evasion is widespread?
Ind. Decisions - "Federal magistrate urges ban of schools’ faith study"
Rebecca S. Green reports today in the Fort Wayne Journal Gazette:
A federal magistrate recommended Tuesday the cessation of the Huntington County Community Schools’ religious education program.
The ruling came about two weeks after a hearing in the case of H.S. vs. the Huntington County Community Schools over the district’s religious release-time education program.
The “By the Book Weekday Religious Instruction” program uses modular trailers plugged into city utilities but parked on the property of Horace Mann Elementary School. It is run by Associated Churches of Huntington.
The lawsuit, filed by the American Civil Liberties Union on behalf of a parent identified only by her initials, seeks to shut down the program, alleging it violates the establishment clause of the U.S. Constitution by allowing religious instruction on school property.
On Jan. 21, the case went before U.S. District Magistrate Roger B. Cosbey for a hearing on whether the program should be temporarily shut down in its current incarnation.
School officials sought the dismissal of the lawsuit, a request Cosbey denied.
In his recommendation, Cosbey wrote that the school district faces minimal harm if the preliminary injunction is granted, while the plaintiff faced irreparable harm with continued violation of her First Amendment rights.
Any inconvenience caused to Associated Churches of Huntington County by the preliminary injunction does not outweigh any harm caused by the constitutional violation, Cosbey wrote in his ruling.
He wrote that the case seemed to be about one ultimate question: whether “religious instruction to elementary students on public school property during the school day, in a church-owned mobile classroom (is a violation) of the Establishment Clause.”
Cosbey found that it was, saying that the use of tax-supported property and the tax-supported public school system to aid religious groups to spread their faiths made the program unconstitutional.
The school system has 10 days to file written objections to Cosbey’s recommendation. If it files a written objection, the plaintiff then has an additional 10 days to respond to those documents.
In a written statement issued Tuesday, school officials said District Senior Judge James Moody, who is in the Hammond Division of U.S. District Court for northern Indiana, will make a ruling after those two deadlines have passed.
Ind. Gov't. - Still more on: Issues continue with state's new welfare eligibility system
The state's new social services chief has halted any further rollout of the privatized, automated welfare intake system until agency officials are sure it can handle the additional volume.More from the story:
The decision by Secretary Anne Murphy of the Family and Social Services Administration comes just weeks into her tenure -- and at a time when lawmakers have introduced bills to tinker with the new system that has met harsh criticism.
About 1.2 million people -- nearly one in five Hoosiers -- receive benefits. About two-thirds of them live in the 33 counties in Northern and Central Indiana that still operate under the old system, in which each household has a case worker overseeing its benefits.
"The secretary has determined that we will not roll out the modernized welfare system to additional counties until FSSA is completely confident we can handle the volume," agency spokeswoman Lauren Auld said in a statement.
Since the rollout began 15 months ago, many clients have complained of lost documents, revoked benefits they were eligible for, lengthy telephone hold times and other problems.
The problems prompted Rep. Suzanne Crouch, R-Evansville, to file a bill that would halt the rollout until lawmakers are satisfied that FSSA has fixed problems in the 59 counties where the changes have arrived.
Courts - More Indiana decisions cited in Coleman-Frankin Senate dispute
The ILB admits it had lost track of the election law dispute over the U.S. Senate race in Minnesota, soon going into its fourth month. However, Indianapolis attorney Bill Groth has helpfully sent along information about additional Indiana decisions being cited in court filings. Here is his note, updating this ILB entry from Dec. 23rd, 2008:
For the election law geeks among your readers, it may be of interest to note that both sides cite and either rely upon or attempt to distinguish two celebrated Indiana election cases, Roudebush v. Hartke, 405 U.S. 15 (1972)(arising out of the close 1972 senatorial contest between incumbent Democratic Sen. Vance Hartke and his Republican challenger Roudebush) and McIntyre v. Fallahay, 766 F.2d 1078 (7th Cir. 1985)(arising out of the incredibly tight 1984 election between Republican challenger David McIntyre and incumbent Democratic Congressman McCloskey).All the documents in the Franken v. Pawlenty case are available here, via the Moritz College of Law Election Law site. The issue: "Whether Senate candidate Al Franken is entitled to receive an election certificate signed by the governor and secretary of state while an election contest brought by his opponent, Norm Coleman, is ongoing."
Both cases are cited and discussed at pp. 8-10 of Al Franken's reply brief filed in the Minnesota Supreme Court in Franken's suit against Minnesota Gov. Pawlenty and Sec. of State Ritchie seeking an order requiring them to issue him a certificate of election pending the final outcome of Norm Coleman's ongoing contest action. Franken's reply brief can be here.
All of the documents in the related case, Coleman v. Franken, are similarly available, here. The issue: "Whether there were irrgeularities in the conduct of the election that affected the result."
Ind. Courts - "Gwin takes over as Clarksville town judge"
Matthew Ralph reports in the New Albany News & Tribune:
With family present and a handwritten sign on a refreshment table in the back of the room welcoming him back, attorney Sam Gwin was sworn in as Clarksville town judge on Monday night by a governing body he served for more than two decades.
Gwin, 67, retired at the end of 2007 as town attorney and was officially appointed by the town council Monday night to fill a vacancy created when former Town Judge Joseph Weber was elected to Clark Superior Court.
Ind. Courts - “Think B4UDrive” DVD is the brainchild of Steuben Circuit Court Judge Allen Wheat
Jeff Wiehe reports today in the Fort Wayne Journal Gazette, in a story that begins:
Just like real life, it begins with a traffic stop by a police officer.
The officer approaches the car to find a female driver who appears drunk. She’s given field sobriety tests and a chemical test for alcohol, all of which she fails. She’s hauled in a squad car to jail, where she’s booked and charged with operating a vehicle while intoxicated. A trial in front of a judge and jury follows, complete with real lawyers, presentations of evidence and jury deliberations.
Just like real life, only this time everything is fictional and recorded on a DVD.
Dubbed “Think B4UDrive,” the DVD is the brainchild of Steuben Circuit Court Judge Allen Wheat. It depicts what happens when someone is arrested for drunken driving.
The DVD, produced by a class from Ball State University, will soon be available free to schools in the state.
The DVD and complementary interactive Web site are part of Wheat’s master’s project for the Indiana Judicial Center.
“It just struck me, that when visiting with young men and women, that when they graduated from high school they had sound knowledge of the legislative and executive branch of government, but they knew next to nothing of the judicial branch of government,” said Wheat, who handles Steuben’s juvenile court.
Wheat’s courtroom was used to shoot the footage with local lawyers and other members of the community playing roles in the ensuing drama.
Everything was made as real as possible, Wheat said. He said he didn’t want to make something to scare or intimidate, but to educate.
“It was another day at the office,” he said of the proceedings. “The trial portrayed is a very simple trial, like hundreds of others that go on across the state each week. The primary motivation was not to lecture about the evils of drinking and driving. Kids are lectured about that plenty.”
Tuesday, February 03, 2009
Ind. Decisions - More on: Transfer list for week ending Jan. 30, 2009
Notable among the cases denied transfer in the list posted today was that of Melinda Loveless v.State of Indiana. See this ILB entry from Nov. 20, 2008 re "her latest bid to have her 60-year prison term thrown out."
Ind. Courts - More on "IHSAA appealing Jasmine Watson ruling"
BLOOMINGTON | Faced with a lawsuit it sees little chance winning, the Indiana High School Athletic Association has ruled baseball and softball are not comparable sports and that girls may now try out for their school's baseball team.
Under IHSAA rules, girls may participate on boys' teams in baseball, basketball, football, soccer and wrestling when a comparable girls program does not exist at the school. But following the lawsuit filed against the IHSAA in November on behalf of a Bloomington South freshman, the association's board recently voted 18-9 to let girls try out for baseball even if their school has a softball team.
IHSAA Commissioner Blake Ress said he thought the rule was correct as it was, but he will not fight the change.
"Our odds are against us winning it in court," Ress told The Herald Times. "It's not impossible, but as we researched it, more states are doing this and when there have been court issues, more often they said they could (play) than they couldn't."
Ind. Decisions - "Two more jail lawsuits thrown out"
Dan Hinkel of the NWI Times is reporting this afternoon:
Two more lawsuits regarding the treatment of inmates at the Lake County Jail have been thrown out of federal court.
On Friday, Fort Wayne federal Judge William C. Lee granted a defense motion for summary judgment in the suit filed by inmate Willie James Gilder, who raised dozens of alleged issues involving a staph infection, medications, jail meals and alleged treatment by guards in a complaint filed in October 2007.
Lee ruled Gilder did not follow jail grievance procedures before he filed his federal suit against Lake County. Lee granted a motion for summary judgment by the defendants, Lake County Sheriff Rogelio "Roy" Dominguez and jail Warden Bernard Freeman.
On Monday, Hammond federal Judge Joseph Van Bokkelen granted a similar motion for summary judgment in the suit filed against Dominguez and Freeman by Robert S. Cranshaw in January 2008. Cranshaw also did not pursue a proper jail grievance process in his long slate of claims involving meals and guard treatment, Van Bokkelen ruled.
Ind. Decisions - Transfer list for week ending Jan. 30, 2009
Here is the transfer list for the week ending Jan. 30, 2009. It is three pages long.
Two transfers were granted last week; see details in this ILB entry from Jan. 31st.
Five years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Ind. Decisions - 7th Circuit decides one Indiana case today
In Best v. City of Portland (ND Ind., Judge Lee), a 10-page opinion, Judge Williams writes:
In this appeal we must deter- mine the preclusive effect in a federal civil suit of the denial of a suppression motion in an earlier Indiana state criminal case that never reached the merits of the criminal charges. The denial of the suppression motion was affirmed in an interlocutory appeal, but the affirmance was followed by a motion in the trial court to reconsider based on new evidence. The trial court never ruled on that second motion because the govern- ment dismissed the prosecution. Applying Indiana law, as we must under 28 U.S.C. § 1738, we hold that the denial of the suppression motion does not have later preclusive effect because it was an interlocutory ruling that was never subsumed within a final judgment on the merits. We also hold that the use of a criminal defendant’s statements at a suppression hearing held after charges are initiated constitutes use in a “criminal case,” and can be the basis of a valid Fifth Amendment claim.
Ind. Courts - "You can't arrest me, you're a referee"
Indiana courts, but of the hardwood variety.
Ken Kosky reports in the NWI Times:
An angry fan who attacked a referee following a basketball game Friday night didn't realize until too late that the referee he was attacking also is an Indiana State Police trooper.
The trooper ended up having the fan -- Patrick Rempala, 64, of Michigan City -- taken to Porter County Jail on charges of battery and resisting.
The arrest occurred following Friday night's boys basketball game at Washington Township High School, which was hosting Michigan City Marquette.
The referee who was attacked -- Indiana State Police Trooper Glen Fifield -- said Rempala rushed out of the stands after the game and confronted the referees, screaming "you suck."
Fifield said Rempala pointed at his chest and bumped him, but Fifield tried to walk away. A school official stepped in between the two, but he said Rempala went around the official and came after him again. Fifield said Rempala pushed him, at which time he identified himself as a police officer and told him he was under arrest.
Rempala said, "You can't arrest me, you're a referee," and he pushed the trooper again, Fifield said. After a struggle and with assistance from spectators, Fifield gained control of Rempala and arrested him. Fifield said during the struggle, Rempala tried to choke him with his referee's whistle lanyard. Fifield said he suffered knee and shoulder pain after the struggle.
Rempala, once he realized the referee he attacked really was a trooper, reportedly said, "That's not fair."
Ind. Courts - "Crows invade Fulton Co. Courthouse trees"
ROCHESTER, Ind. — A large flock of crows is creating a mess around the Fulton County Courthouse.
For about a month, hundreds of noisy crows have been roosting in trees and making a mess on the west side of the courthouse in Rochester, about 40 miles south of South Bend.
County Commissioner Roger Rose says it’s the first time crows have invaded the courthouse grounds.
Commissioners plan to use an electronic distress call to scare the crows and force them to scatter. Purdue University Extension Educator Mark Kepler says the only other way to scare the crows is with explosions, which can’t be used in a downtown area.
Kepler says the crows should eventually disperse from the courthouse in the spring to mate and nest.
Ind. Courts - Yet more on Vanderburgh Little Hatch Act cases
Updating this ILB entry from Jan. 16th, quoting a story from the Evansville Courier & Press that begins:
A ruling on whether the local Republican Party owes a Democratic officeholder thousands of dollars in legal fees will hinge on arguments about the party's intentions.Thomas B. Langhorne of the C&P reported Feb. 2 in a story beginning:
A judge has ruled the Vanderburgh County Republican Party does not have to reimburse Democratic County Councilman Ed Bassemier for the roughly $12,000 he spent defending himself against a GOP lawsuit that the party ultimately dropped.The C&P has also made available a copy of Judge Heldt's 5-page, Jan. 29th ruling - access it here.
The lawsuit alleged Bassemier was ineligible to seek office in 2008 under the Little Hatch Act, which limits the political activities of people whose jobs are funded at least in part by federal money. Bassemier is safety director at Evansville Regional Airport, which receives federal funds.
“The Court does not find that (GOP Chairman Nick) Hermann prosecuted this claim for the primary purpose of harassing or maliciously injuring Bassemier,” Judge Carl Heldt’s ruling says. “The Court also finds that there are reasonable attorneys who would consider that Hermann’s claim was worthy of litigation.”
Ind. courts - "Hudson gets 60 years for abducting attorney"
Updating this ILB entry from July 10, 2008 headed "Anderson police remain on the lookout for a man believed to have abducted his lawyer at knifepoint," the Muncie Star-Press has a report today headed "Hudson gets 60 years for abducting attorney." The story begins:
ANDERSON — A former Jay County resident convicted of abducting his attorney at knifepoint was sentenced Monday to 60 years in prison by Madison Superior Court 1 Judge Dennis Carroll.
Richard L. Hudson, 52, more recently of Anderson, pleaded guilty but mentally ill in December to charges of kidnapping and armed robbery.
On July 7, lawyer Thomas Hamer was returning client Hudson to the Madison County jail after a civil hearing in Indianapolis when Hudson took the lawyer hostage at knifepoint.
Police said Hamer was left bound in a nature preserve on Anderson's east side. The attorney's SUV was found, along with the knife used in the abduction, in a Muncie parking lot two days later. Hudson was arrested July 11 while driving another stolen vehicle in Madison County.
Hudson wasn't in the courtroom Monday when Judge Carroll imposed the sentence. The defendant had stood up and began cursing when Hamer entered the courtroom, insisting he did not want to attend the hearing. The judge eventually agreed to allow Hudson to return to the Madison County jail.
Ind. Courts - Marion County reportedly suspends bench warrants for delinquent parents
That according to this WTHR 13 Eyewitness News report by Sandra Chapman. Some quotes:
Indianapolis - Arrest warrants have vanished for thousands of deadbeat parents as a result of a new court policy. * * *
"It's going to make it more difficult, there's no question about that," said John Owens, Chief Deputy Prosecutor for Child Support.
Owens' office deals with 72,000 open cases in any given month. Back in 2005, his office rolled out it's "Top Ten Most Wanted" on outstanding warrants. But now, even the worst of the worst can walk free because of a new policy.
"There could be some improvements," said Marion County Court Administrator Glenn Lawrence.
He said the warrants were suspended to allow no-shows the chance to explain why. He also said the county recently settled a case in which a defendant was denied due process.
"They might put them in jail and not bring them immediately before the court," Lawrence said. "So we felt it best to go ahead and do a blanket expungement [sic] of those outstanding - whatever they were - bench warrants."
Marion County's Civil Division says it would typically get between 12 and 15 bench warrants a day for delinquent parents failing to show up in court. But that all stopped abruptly about a week ago.
"Immediately, we had to recall and do away with all of the warrants we had in file and try to run them up around the state of Indiana to notify the sheriffs not to serve our warrants, because they were no longer active," said Marion County Sheriff's Department Capt. Norman Buckner.
Now, the courts can only order what's called a "body attachment".
"It's not really an arrest. It's a notice to bring them before the court," Lawrence said.
The challenge is finding the deadbeats during court hours. With the warrants erased, traffic stops will no longer show police the individual is wanted.
"They're getting a lot more than due process. It's just so unfair to these children that they're going without," Sadler said.
Indiana's Judicial Center is reviewing the new policy. Both the state's prosecutors and judges associations are looking to lawmakers to help remedy the situation.
But for now, failure to appear doesn't mean going to jail.
Monday, February 02, 2009
Ind. Law - Can you rely on the Indiana Code? Where are we with the Indiana Code issues?
The point of the articles was that all the state's substantive statute law was not included in the Indiana Code, that this fact was not general knowledge, and that the General Assembly should act to make all its statutes available in the Indiana Code.
At the second meeting of the 2008 legislative interim Code Revision Commission, held on December 9, the Legislative Services Agency staff presented to the Commission members the draft of a bill (PD 3770) to begin to address the issue of statutes not complied in the Indiana Code. The staff referred to this as "Phase I." The staff also unveiled its plans for "Phase II," to be accomplished during the interim between the 2009 and 2010 sessions.
These plans were not reduced to writing and no minutes of the December 2008 meeting have been posted. However I attended the meeting and took extensive notes, and they are the focus of my latest article on the Indiana Code, that will appear in the January/Feburary 2009 issue of Res Gestae. An advance copy is available here.
The article, titled "Resolving issues of statutes not compiled in the Indiana Code," is in three sections - (1) an introduction and background; (2) my notes of LSA presentation (printed against a gray background); and (3) my concerns about some aspects of the planned approach, which is in some ways unlike that taken with the prior recodifications. These are found in the final two pages of the article.
The Phase I bill, introduced as SB 346, is scheduled to be heard Wednesday by the Senate Committee on Judiciary. SECTIONS 9-33 of the bill add 25 noncode acts or parts of acts to the Indiana Code and SECTION 34 repeals their noncode versions. This is all to the good, although, as the LSA staff indicated in their December presentation, there remain many hundreds of provisions to be dealt with.
SB 346 is definately a step in the right direction and should be enacted. My issue with SB 346 is with SECTIONS 1-7. I would urge that these SECTIONS be eliminated from the bill. These sections rewrite Indiana Code, Title 1, Article 1, Laws Governing the State, to make the expiration of an effective date the equivalent of a repeal. For instance, SECTION 7 would add a new IC 1-1-5-10 to read:
Sec. 10. The expiration of a statute has the same effect that the repeal of the statute, effective on the date of the expiration of the statute, would have had.My concern is set out in the article:
SECTIONS 1-7 of the 2009 bill draft appear to be unnecessary in light of the LSA staff’s announced plan to include a blanket repealer in the 2010 bill draft, that would repeal all past, expired noncode provisions. Expiration provisions in the future could be drafted as self-repealing provisions.These was no discussion at the December meeting of what other states have done, research undertaken, etc. My concern was only enhanced in this past week when I researched the statute involved in the Redmond v. State decision (see today's entry here) -- an example of the ramifications of seemingly harmless language added to the Indiana Code without adequately looking into potential consequences. I do not think a change of this magnitude should ever be made unless: "(1) it is clear that there is a problem; (2) there is only one way in which the problem can be corrected; and (3) correcting the problem will not result in a substantive change in the law." These are the same rules the LSA staff uses in making decisions about technical Code corrections.
For example, rather than:This SECTION expires July 1, 2015.The provision would be drafted:This SECTION is repealed July 1,2015.This would alleviate potential unanticipated consequences resulting from making the major changes currently proposed by SECTION 1-7, which adds an entirely new class, “expiration,” to statutes historically dealing only with the interpretation of the repeal of laws. The proposal has no definitions and gives no indication of whether the change is to operate only prospectively.
I also have concerns about SECTION 8 of the bill, as there was no discussion or explanation of SECTION 8 at the meeting and it appears to have nothing to do with recodification.
As for the Phrase II bill, I have concerns which you may share after reviewing the minutes of the December meeting. Much of the decisionmaking appears to be subjective, rather than objective. As I conclude in the new article, implementing the goal of putting the 24-years' worth of uncodified but still operative, substantive Indiana statute law into the Indiana Code would require adding back:
statutes that the LSA staff has indicated in its testimony it likely would exclude from recodification, including: provisions that may not be anticipated to be used by a large number of people; statutes with future expiration dates; applicability sections; and statutes that one or several legislators might not want made a part of the Indiana Code.
Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
Dwight G. Fry v. Indiana Dept. of Correction, Prison Health Services of Indiana, et al (NFP) is a 3-page petition for rehearing. The Court agrees with Fry's claim that his Notice of Appeal was timely filed, based on a 1988 SCOTUS decision that " the date a pro se prisoner delivers notice to prison authorities for mailing should be considered the date of filing, not the date of receipt. * * * Therefore, we withdraw that reason for dismissing Fry’s appeal." However, the Court ays that the other ises were fully addressed in the original opinion, conluding: "We reaffirm our decision to dismiss Fry’s appeal, but grant the petition for rehearing solely for the purpose of clarifying the reasons for that dismissal."
Term. of Parent-Child Rel. of C.S. v. Dept. of Child Services of Grant County (NFP) - " Concluding the Grant County Department of Child Services (“GCDCS”) presented clear and convincing evidence to support the trial court‟s judgment terminating Father‟s parental rights, we affirm. "
NFP criminal opinions today (2):
Ind. Decisions - More on Redmond v. State
Last week the ILB commented on the decision in the case of Dale Redmond v. State of Indiana, noting:
The Court writes:I looked at the history line to the current version of IC 35-38-1-17 and noted that prior to the 2005 amendment, the section had been amended in 2001, but that that amendment did not affect subsection (a). The next most recent amendment was from 1991. So what was the genesis of the "technical correction" made as part of the 2005 bill? What error was intended to be corrected?We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the term “imposed” to be critical.Here is PL 2-2005 (HEA 1398), SECTION 123, setting out the amendment. SEC. 123 begins on p. 98.
What is confusing to me is that this is a Code Correction Bill. A correction bill is introduced at the beginning of each session to correct technical errors made in the last session - typos, reconciling where two laws amended the same section, etc. Scroll though the act and you will see that.
Code correction bills never make substantive change. Yet there is no clue as to where the "technical" changes made to IC 35-38-1-17 came from. What error are they intended to remedy?
The change was part of the "annual technical corrections bill to correct errors in the Indiana Code," a product of the legislative interim Code Revision Commission of 2004. The minutes of the 9/8/2004 meeting, where this bill is discussed, are available online. Here are a few excerpts from the minutes that shed light on the "technical correction" concept:
Craig Mortell, Deputy Director of the Office of Code Revision (OCR), addressed the Commission about the 2005 Technical Corrections (TC) bill. Mr. Mortell distributed: (1) PD 3006, the first draft of the 2005 TC bill; (2) a SECTION-by-SECTION outline of PD 3006; (3) a supplementary draft containing SECTIONS proposed for addition to the contents of PD 3006; and (4) a SECTION-by-SECTION outline of the supplementary draft. [ILB Note - "PD" means preliminary draft.]I won't quote these all, you may find them on pp. 3-4 of the minutes. But here is one example of what was considered a "close call":
Mr. Mortell expressed his gratitude to many persons who provided information on technical problems suitable for resolution in the 2005 TC bill, and especially recognized the contribution of the attorneys of the LSA's Office of Bill Drafting and Research, who reviewed all of the 2004 Acts and informed OCR of the technical problems they found in their review. Mr. Mortell then discussed several types of technical corrections contained in PD 3006, including the following:
-- Conflicts (instances in which two 2004 Acts amended a single Code section in inconsistent but not incompatible ways).
-- Incorrect internal references.
-- Miscellaneous wording and numbering problems (redundancies, missing words, misplaced articles, incorrectly numbered subdivisions, etc.).
-- Prior millennium references (12 instances in which Code sections indicate that the current date is to be filled in on a form and mark the space where the current year is to be filled in with "19__"). * * *
Mr. Mortell said that OCR is careful not to include a correction for a perceived problem in the TC draft unless: (1) it is clear that there is a problem; (2) there is only one way in which the problem can be corrected; and (3) correcting the problem will not result in a substantive change in the law. Out of concern to maintain these standards, he said, OCR wishes to highlight certain "close calls" -- technical corrections presently included in PD 3006 or the supplementary draft that require careful analysis under these standards. He said that OCR wants to draw the Commission's attention to these "close call" corrections and other proposed corrections requiring additional explanation, to make sure that the Commission is comfortable with their inclusion in the 2005 TC bill. Mr. Mortell and Mr. Stieff discussed the following:
(1) IC 6-1.1-22.5-10: PD 3006 resolves the conflict between the version of IC 6-1.1-22.5-10 as added by P.L.1-2004 and the version of IC 6-1.1-22.5-10 as added by P.L.23-2004. The only difference between the two is that the P.L.1-2004 version includes the word or word fragment "not" in the following context: "the county treasurer shall give not notice of tax rates ...". Because the inclusion of "not" in this context appears to have been unintentional, PD 3006 strikes "not".The amendment to IC 35-38-1-17 is not mentioned at all in the minutes.
Friday I wrote the LSA:
I have a question about PL 2-2005 (HEA 1398), SECTION 123 that amended IC 35-38-1-17.LSA promptly responded over the weekend with this note, sending me "the relevant excerpt from the 2005 TC bill outline that explains the change to IC 35-38-1-17 that you were inquiring about.":
Can you tell me what was the genesis of the correction?
I've checked the minutes from 2004, and although they refer to the technical corrections bill, PD 3006, and to several outlines of the bill, none of this appears to be available online.
IC 35-38-1-17But the introduced version of the bill, HB 1398-2005, goes beyond this description to add the new phrase "imposed on the person." Here is subsection (a) from the introduced version:
Inconsistent terminology. IC 35-38-1-17 refers to an individual who is the subject of a criminal prosecution both as "defendant" and as "convicted person". HB 1398 makes the references consistent by changing "defendant" to "convicted person". An individual referred to in IC 35-38-1-17 has been convicted and sentenced and has begun serving a sentence, so "convicted person" seems more appropriate than "defendant". No other section in IC 35-38-1 refers to an individual who has already been sentenced as a "defendant".
Effective: Upon passage.
Consulted: Stephen Johnson, Exec. Director, Pros. Attnys Council
SECTION 127. IC 35-38-1-17 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 17. (a) Within three hundred sixty-five (365) days after:I have written to LSA asking for any additional background information.
thedefendant a convicted person begins serving histhe sentence imposed on the person;
(2) a hearing is held:
(A) at which the
defendantconvicted person is present; and
(B) of which the prosecuting attorney has been notified; and
obtainingthe court obtains a report from the department of correction concerning the defendant'sconvicted person's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must incorporate its reasons in the record.
Finally, here are some quotes from the 1996 Court of Appeals decision in Liggin v. State, an opinion which, like the Redmond decision last week, turned on the word "imposed":
Liggin's interpretation of the relevant triggering event is at odds with the plain meaning of IC § 35--38--1--17(a), which does not mention the imposition of sentence but instead states that the court may modify a sentence "after ... the defendant begins serving his sentence." Nevertheless, Liggin cites in support of his position Sanders v. State, 638 N.E.2d 840 (Ind.Ct.App.1994). In Sanders, this court affirmed the trial court's determination that it could not modify the defendant's sentence more than 365 days after it had been imposed unless the prosecutor consented to the modification. Liggin notes that in Sanders, this court stated, "Pursuant to I.C. 35--38--1--17(a), a trial judge may order 'shock probation' within 365 days after a sentence is imposed." Id. at 841. We observe that the above statement was not central to the holding in that case and thus constituted dicta. In any event, and regardless of how it is characterized, it was an inaccurate summarization of the present statute's contents and thus an incorrect statement of the law.
When construing a statute we must give the statute its apparent and obvious meaning. Williams v. State, 600 N.E.2d 962 (Ind.Ct.App.1992). The predecessor to IC § 35--38--1--17 stated that the court could reduce or suspend a defendant's sentence "within one hundred eighty (180) days after it imposes a sentence". See Ind.Code Ann. § 35--4.1--4--18 (repealed 1983). However, in 1983 the statute was amended to provide that the modification could occur "within 180 days after ... the defendant begins serving his sentence", thus unambiguously changing the triggering event from the imposition of the sentence to the commencement of serving the sentence. The present statute is the same as the 1983 amended version in all relevant respects except that in 1991 the Indiana General Assembly changed the time period from 180 days to 365 days. Thus, the current version of the statute specifies that a trial court may modify a sentence within 365 days after the defendant begins serving his sentence. In the instant case, Liggin had not yet begun serving the sentence at the time the trial court purported to modify it. Therefore, the conditions of IC § 35--38--1--17(a) were not present, the trial court was without authority to modify the sentence, and erred originally in doing so. The trial court properly granted the State's Motion to Correct Erroneous Sentence. Judgment affirmed.
Environment - "Pollution control at issue: Lawmakers push to reverse policy"
Eric Bradner has this report today in the Evansville Courier & Press. Some quotes from the lengthy story:
Democratic state lawmakers are worried that recent changes in how the Indiana Department of Environmental Management enforces environmental laws will make it tougher to crack down on polluters.
Now, legislators are trying to force the state's environmental agency to reverse those changes. * * *
Two bills before the Indiana Legislature — bills Daniels called "very unwise" — would reverse IDEM's decisions.
House Bill 1351, by state Rep. Ryan Dvorak, D-South Bend, would require IDEM to re-open an enforcement division separate from its other divisions.
Senate Bill 456, authored by state Sen. Bob Deig, D-Mount Vernon, would restart the partnership between IDEM and local air pollution agencies.
Ind. Gov't. - "Critics say FSSA offices fail to offer voter registration forms"
Mary Beth Schneider has a front-page story in today's Indianapolis Star that begins:
When low-income Hoosiers turn to state social-services offices for help, they're supposed to get something more than financial assistance. They're also supposed to be able to register to vote.More from the story:
But two national voting-rights groups say Indiana is failing that federally required responsibility, and, as they have done elsewhere, are threatening to sue the state.
Project Vote and the Association of Community Organizations for Reform Now, or ACORN, say their November survey of nine Indiana Family and Social Services Administration offices in Lake and Marion counties found that none were providing voter registration forms to clients. Eight didn't even have the forms available, the groups said.
Nicole Kovite, a Project Vote official, said workers at the FSSA offices were unaware of the federal law that makes social-services offices -- along with Bureau of Motor Vehicle branches and some other public offices -- responsible for helping people register to vote.
"We don't do voter registration here. You'll have to go somewhere else," one FSSA staffer reportedly told a member of the voting group.
As they're required to by law, Project Vote and ACORN sent their initial letter, warning of possible legal action, to Secretary of State Todd Rokita.
Rokita -- who during the 2008 election accused ACORN of voter fraud for submitting fraudulent voter registration forms in Lake County -- declined to be interviewed.
In a letter, Jerold A. Bonnet, the counsel in the secretary of state's office, told the groups they should contact the Indiana Election Division, and touted the office's voter registration efforts, saying Indiana has had record increases.
Kovite said the organizations will send an "intent to sue" notice to the election division, triggering a 90-day window for the state to take action or face a lawsuit.
The voting-rights groups have taken such legal action before, including in Ohio and Missouri, where cases are pending in court.
In Missouri, Kovite said, a federal judge last July granted the groups' motion for a preliminary injunction compelling the state to comply with the law. Since then, she said, more than 57,000 voter registration applications have been collected in that state's social-services offices.
In addition to cases brought by ACORN and Project Vote, the U.S. Justice Department also has taken action against states that fail to comply with the Motor Voter law, reaching consent agreements with Arizona, Tennessee and, in the past few weeks, Illinois.
Kovite said the groups' goal is not to go to court, but to see the federal law followed.
"At this point, Indiana has shown no effort to comply with the law," she said.
Ind. Law - Laws on littering, snow removal
Ken Kosky's NWI Times' "It's the Law" column for this week looks at littering. It begins:
In tough economic times, some people try to save money by cutting spending on anything that isn't essential.Last week's (Jan. 26th) column dealt with winter-related laws and ordinances. Some quotes:
But people who cancel their garbage service should keep in mind that it is illegal to dump garbage along a rural roadside, to burn it or to place it in someone else's garbage can or Dumpster without their permission.
Indiana law states a person who places garbage on the property of another commits littering, a ticketable offense. Indiana law allows fines of as much as $1,000, more if it involves a lit cigarette.
Most towns, cities and counties have an ordinance that requires people to move their vehicles off the roadway anytime 2 inches or more of snow falls. Generally, the cars must remain off the roadway until the plows remove the snow or the snow melts or is compacted to less than 2 inches.
Porter County Sheriff's Department Lt. Chris Eckert said cars on the roadway were wreaking havoc last week.
"County Highway is having trouble opening streets up and citizens are having trouble navigating the roadways because of those cars buried with snow for days," Eckert said, adding blocked roads also hamper the response of emergency vehicles.
Most jurisdictions also have an ordinance preventing people from shoveling, plowing or blowing snow from private property onto a public street or alley. Police said when people put snow onto the roadway, it could cause a motorist to slide and crash.
Environment - "Hoosier streams still have high levels of mercury: Reduction in air emissions isn't reflected in water"
Shari Rudavsky reports in the Indianapolis Star today in a lengthy, front-page story that begins:
Levels of mercury remain high in several Indiana streams and rivers, despite years of effort to reduce the contaminant, which can cause neurological damage.
More than 80 percent of samples taken from Indiana streams from 2004 to 2006 contained detectable levels of mercury, according to a U.S. Geological Survey study. Preliminary analyses on data collected in 2007 and 2008 indicate that not much has changed.
The 2004-06 study also found that 10 out of the 25 streams monitored had at least one reading that exceeded the safe level for mercury, and about 6 percent of more than 200 samples contained enough mercury to harm humans. Analysis of the 2007-08 data is still under way.
Ind. Law - This week at the General Assembly - Week 4 [Updated]
A few quotes from Bryan Corbin's weekly "Legislative Notebook" report today in the Evansville Courier & Press:
With Indiana's unemployment rate lurching up to 8.2 percent last week, the dual imperatives for state lawmakers and the Daniels administration are to put jobless Hoosiers back to work quickly and ensure them adequate unemployment benefits.[Updated 2/4/09] See this Corbin story today on the week so far.
Lawmakers are crafting the next state budget amid plummeting revenues, even as Gov. Mitch Daniels has proposed cutting state agencies by 8 percent, higher education by 4 percent and flat-lining funding for K-12 education to avoid raising taxes or dipping into reserves.
What could change the equation considerably, however, is Indiana's potential $5 billion piece of the $819 billion federal economic stimulus pie,that Indiana could receive, if Congress approves the proposed stimulus in a few weeks. Having passed the U.S. House, it's now before the U.S. Senate.
Such a mammoth $5 billion payout to Indiana would be on top of the $28.3 billion general-fund state budget Daniels is requesting from the Legislature. Between $1.5 billion and $2 billion could be used for roads and bridges, mass transit, school improvements and clean water projects.
Legislative Benefits - "Revolving door spins out of control"
From an editorial today in the Indianapolis Star:
Indiana has not experienced a state capitol scandal to rival the Rod Blagojevich affair in many years, but there's little reason for Hoosiers to be smug about their neighboring state's troubles.
On the same day the Illinois governor was thrown out of office, a prominent Indianapolis elected official announced he was stepping down from his post to take a job as a lobbyist. A few days earlier, a newspaper reported that a recently retired state senator was back with his old colleagues -- working as a lobbyist.
We can take their word that Center Township Trustee Carl Drummer and former Sen. Robert Meeks are simply fighting for good government in a new arena. We can also ask what it is about Drummer, and Meeks, and former state Rep. Michael Ripley, and former state Sen. Larry Borst, and the dozens of others who have left the General Assembly or other elected office for the lobbying business, that makes them so employable.
Try connections, influence and particular interests, all of which matter to the industries and organizations trying to steer legislation to their benefit, with the public's benefit being incidental. Before he retired because of illness, for example, Meeks was the Senate's top budget negotiator. As the legislature deliberates on a tight state budget and a federal windfall, he will weigh in for special interests.
The dangers inherent in such coziness have prompted most states, plus the federal government, plus the Daniels administration in the executive branch here, to impose strict rules on lobbying. Indiana's legislature has not kept pace, although reformers have plugged away every year. This year, once again, the vital signs for corrective bills are weak.
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:*
This Tuesday, Feb. 3rd:
1:30 PM - South Central Bank of Daviess County vs. Lynnville National Bank, et al - Issues raised by Appellant, South Central Bank, the decision of the Warrick Circuit Court concerning the ability of Appellee's refusal to pay a cashier's check it issued. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Kirsch. [Where: Indiana Court of Appeals Courtroom]
This week's oral arguments before the Court of Appeals that will NOT be webcast:
* ILB note: As of now, the 2009 COA webcasts, both live and archived, may be accessed here.
Sunday, February 01, 2009
Law - Yet more on "Kentucky Tests State's Reach Against Online Gambling"
Updating this list of earlier ILB entries under the same heading, Marcia Coyle of The National Law Journal has this lengthy story, dated Feb. 2, headed: "Kentucky suit has Web world in tizzy; At issue: forfeiture of domain names of gambling sites." Some quotes:
WASHINGTON — What if China seized the domain names of U.S. Web sites promoting religions that China bans? Or what if (horrors of horrors!) Nebraska seized and shut down the domain name law.com because its cutting-edge legal content, that state believed, encourages frivolous litigation in violation of state law?More from the story:
Preposterous, right? Well, not so incredible as to stop a battery of lawyers for Internet businesses, domain registrars, civil liberties groups and others from engaging the state of Kentucky in legal battle over that state's attempt to halt Internet gambling by seizing 141 domain names whose owners are located primarily out of state or overseas.
Kentucky, which prohibits online gambling, persuaded a state trial judge last fall that the domain names were illegal gambling devices under state law, and the judge issued the forfeiture order to registrars — not owners — of the domain names. An intermediate appellate court recently disagreed, 2-1, and the state government late last month filed its notice of appeal with the Kentucky Supreme Court. Vicsbingo.com and Interactive Gaming Council v. Wingate and Kentucky, No. 2008-CA-2036.
As it heads into the state high court, Kentucky sees even odds: Two judges have agreed with its approach and two have disagreed, said Michael Brown, secretary of the Kentucky Justice and Public Safety Cabinet, who, along with Governor Steve Beshear, is leading the state's effort.
But there is nothing "even" about the impact on Internet businesses if Kentucky's legal approach prevails, say its opponents.
"I think it would make the lay of the land very uncertain for Internet businesses," said John Krieger, a partner in the Las Vegas office of Phoenix-based Lewis and Roca, and counsel to the Poker Players Alliance, which filed an amicus brief opposing Kentucky.
The whole idea behind the law, he said, is to try to make it clear enough so businesses can structure their conduct accordingly and see the legal ramifications of their actions.
"If Kentucky were able to go ahead, it certainly would make it much more uncertain for Internet businesses as to what conduct they could engage in and what jurisdiction and laws they would be subject to," he added. "It opens up a Pandora's box."
And it is a box with national and international implications, said A. Jeff Ifrah, shareholder in the Washington office of Greenberg Traurig, who, along with Bruce Clark and Ian Ramsey, Kentucky partners at Stites & Harbison, is counsel to the Interactive Gaming Council, whose members include about 60 owners of the 141 domain names at issues.
"The long-term consequence is you could have any state official on a Web-site-by-Web-site basis making moral or other determinations as to whether they believe their residents should have access," he said. "That's a First Amendment issue, a dormant commerce clause issue and an anyone-in-the-Internet business issue."
The Kentucky litigation, according to Krieger and others, is the first of its kind. The state's move to get a court order demanding forfeiture of the domain names mobilized strong reaction from associations and trade groups that represent the registrars of those domain names as well as from civil liberties groups such as the Center for Democracy and Technology (CDT), the Electronic Frontier Foundation and the American Civil Liberties Union.
"No state that I know of has kind of gone down this path of trying to use domain names to control something on the Internet," said John Morris, general counsel of the CDT. "There are lots of problems, putting aside the really big picture of free speech and censorship. Although there are certainly areas like protecting privacy that state governments are well suited to help in the process of addressing content on the Internet, in most areas, the Internet is really like the interstate highway system. A particular state shouldn't require all trucks driving through the state to use a different size tire than other states."
Although the Kentucky litigation raises a number of constitutional and other legal questions, the core concern for Internet business owners is the jurisdictional issue.
Does a state court have the authority or power to seize domain names when none of the domain owners is present in the state and all of the names are registered outside of the state?
Courts - Kentucky judge admonishes lawyers whose briefs contain personal attacks on one another
Michael Stevens of the Kentucky Law Blog has some eye-catching quotes from an opinion by Judge Sara Walters Combs, Chief Judge of the Kentucky Court of Appeals. From the Jan. 23 KLB entry:
The Court of Appeals in a Madison County case (Joshua Spivey v. Commonwealth) sent a warning about unprofessional and inappropriate language in appellate briefs submitted in the case. The appellate decision was issued on Jan. 23, 2009. * * * The court was upset over the unnecessary language in which the attorneys critized the other. * * * Chief Judge Sara Combs wrote:The briefs of both counsel contain numerous examples of unprofessional and inappropriate language; in some instances, counsel engaged in personal attacks on one another.
In another, a crude parody involving opposing counsel’s name was inserted. In one instance, counsel referred to an opposing argument as “silly.”
One of the briefs also contains unnecessary and extraneous attempts at metaphors that do not constitute arguments of law.
Sarcastic language and insidious innuendoes have no place in any legal document – be it briefs of counsel or opinions of a court. Since both sides have acted in pari delicto, we have declined to strike the briefs or to protract this appeal by ordering the filing of new briefs that conform with the basic tenets of professionalism.
However, we trust that future admonition along these lines will never again be necessary.
Environment - Yet more on: IDEM dissolves office of enforcement
Updating this ILB entry from Dec. 19, where I noted that although a pending IDEM guidance document on Compliance and Enforcement Response Policy, available here as 08-006-NPD, provides that it "SUPERSEDES: Classification of Environmental Violations and Criteria For Referral of Such Violations to the Office of Enforcement dated February 5, 2003," and I suggested that it would be good to compare the currently in effect (2003) with the proposed new policy to see what changes were proposed to be made ...
I received a certified letter from IDEM on Saturday, Jan. 31st, six weeks after submitting my FOIA request for a copy of the 2003 guidance document. A copy of the IDEM letter is attached.
My request is denied on the grounds that the 2003 document requested "is exempt from disclosure under IC 5-14-3-4(b) (6)" because the document "is intra-agency deliberative material which was never authorized for promulgation."
Ind. Law - "Bill allows DNA from felony arrestees"
Tens of thousands of Hoosiers never convicted of a crime could find their DNA in state and federal databases under a bill making its way through the Indiana Senate.
The legislation is an attempt to take the next step with a scientific advance many consider to be the best crime-fighting tool in decades. But others wonder whether government is going too far and invading the privacy rights of citizens.
“Why not just get everyone’s DNA when they are born?” asked Sen. Tim Lanane, D-Anderson. “There is still a presumption of innocence in our system.” * * *
Indiana’s DNA database began in 1996 and has slowly been expanded over the years. Law enforcement currently takes DNA samples from all convicted felons, resulting in a database with about 122,000 samples. * * *
Only seven states have laws requiring everyone arrested for a felony to give their DNA, according to information given at last week’s hearing.
But Asplen said taking the DNA at the point of arrest – rather than conviction – can prevent crimes. * * *
But there is a cost to running all the DNA samples.
According to a fiscal analysis by the Legislative Services Agency, it would cost $3.8 million annually to analyze and maintain the additional DNA samples.
Currently there is a $2 DNA sample processing fee included in court costs for all Hoosiers convicted of misdemeanors or felonies. That fee would have to increase to $11 to process the new felony arrestee DNA.
“Whether you are going to get much bang for the buck is unclear,” said Larry Landis, executive director of the Indiana Public Defender Council. “We would spend millions in public funds upfront and all the savings are speculative.”
But a representative from Strand Analytical Laboratories in Indianapolis gave members of the Senate Judiciary Committee last week a study that showed state and local government would save almost $20 million a year in law enforcement and judicial costs owing to the number of crimes being prevented.
Then there are the privacy concerns. The American Civil Liberties Union fought a measure last summer to expand the federal DNA database to arrestees, noting it could be a Fourth Amendment violation. This amendment protects people from unreasonable searches and seizures.
But the author of the bill, Sen. Joe Zakas, D-Granger, said initial court rulings have upheld the arrestee laws as constitutional.
In the only challenge to reach the state Supreme Court level, the Virginia Supreme Court ruled that the taking of DNA upon arrest “is analogous to the taking of a suspect’s fingerprints upon arrest and was not an unlawful search under the Fourth Amendment.”
Zakas and members of the committee last week did amend Senate Bill 24 to include a provision allowing those whose cases never result in formal charges or were later dismissed or acquitted to expunge the DNA from the database.
The process was described as “fairly” automatic, although the person would have to send a request to the Indiana State Police with supporting documentation.
“The person falsely accused ought not bear any burden,” Landis said. “It’s just another hoop to jump through. If you get dismissed, there should not only be an automatic expungement, there should be an apology.”
Sen. John Broden, D-South Bend, voted for the bill but wants to tweak it so the removal is more automatic and people don’t fall through the cracks.
Littlejohn said the state police might have to conduct more than 100 expungements a day under the law, something that would “overwhelm” the lab.
The high number is because 40 percent of cases statewide are dismissed, Landis said. Also, some people are arrested but not formally charged, and others who are charged with felonies later plead guilty to misdemeanors.
In comparison, there are few convictions that are overturned or vacated annually that would require the DNA to be removed.
Landis did say the public defender council has previously supported the general idea of the database, when convictions are entered and the presumption of innocence is gone. An added feature is that the DNA database can be used to exonerate people.
“It cannot only convict the guilty but it can, and has, freed the innocent,” said Sen. Richard Bray, R-Martinsville.
The bill passed out of committee 7-2 last week and now must go to the Senate Appropriations Committee because of its price tag.
Ind. Law - Notre Dame students hear about alcohol and the law"
Liz Harter has an interesting story today in the South Bend Tribune. Some quotes:
The speaker began his lecture by showing a picture he found on Facebook, a social networking Web site, of underage Notre Dame students holding alcohol in their profile pictures and another of two girls drinking beer while driving.
“Those are public pictures on the Notre Dame network,” said the speaker, C.L. Lindsay. He noted he joined the Notre Dame network, which requires a Notre Dame e-mail address to join, by “borrowing” one.
“A lot of people have their pictures open to the Notre Dame network; that’s a problem.”
Town-grown relations, or the relationship between the University of Notre Dame and the South Bend area, was the agenda at Notre Dame’s “Alcohol, Parties and the Law” lecture last week.
Notre Dame’s student government brought Lindsay, the executive director of the Coalition for Student and Academic Rights, to campus to help students understand their rights when it comes to off-campus partying. Lindsay used humor and pictures of dolls in compromising situations to present important information to the students.
CO-STAR offers free legal help to students. Lindsay is the author of the book “The College Student’s Guide to the Law.”Lindsay then went on to talk about South Bend laws regarding consuming and buying alcohol off campus. Consumption is not illegal in 14 states, but possessing alcohol as a minor is illegal in all 50, he said.
“It’s really impossible to consume beer without possessing it at some point,” Lindsay joked.
He warned, though, that it is “way better” to be underage and drinking than to be someone who is older than 21 and serving alcohol to people underage.
“(Police) want to get to the people who are enabling drinking more than they want to get the people drinking,” he said. “It’s an infraction for every (underage) person that’s at your party.”
If there are 17 underage drinkers at the party, he said, the host would be fined $17,000 and could spend up to eight and a half years in jail.
“It will never be enforced at this level, but that’s where it will start,” he said. “This means that a $5,000 fine and a year on parole is a really good deal.”
Lindsay also provided tips to students on how to throw a party without the police getting involved.
Ind. Law - "2 Indiana legislators want longer sentence for killing fetus"
Jon Murray has this story today in the Indianapolis Star. Some quotes:
An Indianapolis bank shooting that resulted in the deaths of a teller's unborn twins has sparked legislation that would lead to harsher penalties for such crimes.Here is the side-bar labeled "The Feticide Bills" prepared by reporter Murray:
Two separate proposals would increase the sentences for killing fetuses, while carefully trying to avoid igniting an abortion debate.
The measures would add up to 55 years to the prison sentence of a person convicted of a crime against the mother, depending on the offense, no matter the fetus' stage of development or whether the suspect knew the woman was pregnant.
Such a change would fill what supporters see as a gap in Indiana law. The knowing or intentional killing of a fetus that has attained the ability to live outside the womb, commonly recognized as about seven months by state courts, already qualifies as murder.
But short of viability -- as with the twins of Indianapolis bank teller Katherin Shuffield, who was five or six months pregnant when she was shot -- the most severe charge available is feticide. The Class C felony carries a potential penalty of two to eight years in prison.
"I don't think two to eight years is sufficient for the taking of a human life," said Marion County Prosecutor Carl Brizzi, who worked with the two Indianapolis lawmakers who authored the bills.
Abortion-rights advocates have argued that giving fetuses separate legal status could jeopardize women's reproductive rights or put pregnant women at risk of prosecution for harmful behavior. At the same time, anti-abortion activists have held such laws up as a toehold in the fight to outlaw abortion.
Those are debates Brizzi hopes the bills avoid. "This has nothing to do with reproductive rights," he said. * * *
A legal expert voiced support for Merritt's bill because of its narrower scope. But he cited several potential problems in both proposals, including inconsistent penalties depending on the crime against the mother.
"That sort of bothers me," said Henry Karlson, a retired law professor at the Indiana University School of Law-Indianapolis. "Why should the life of a fetus be worth 10 years in one circumstance and 45 years in another?"
Last year, Karlson suggested that lawmakers increase the feticide charge to a Class A felony, which carries 20 to 50 years in prison.
But Merritt and Brizzi said the sentence enhancement option provides a heavy penalty without making the unborn child's death a separate charge, a route they figured was safer politically by avoiding the debate over when life begins.
"This seems to be the middle of the road," Merritt said.
Indiana is among 36 states with some form of fetal homicide law. If either pending bill becomes law, the state would join at least 19 others with statutes covering the earliest stages of pregnancy. * * *
The Shuffields have run into legal hurdles in a wrongful-death lawsuit accusing Huntington National Bank of ignoring a history of robberies and providing too little security at the branch, which since has closed. Because the Indiana Supreme Court has interpreted the Child Wrongful Death Act to apply only to "children born alive," their best hope to try such a claim is for the daughter who survived for a few hours after birth.
Their attorney, Kathy Farinas, said the couple planned to attend a Senate committee hearing Tuesday morning in support of another proposal, Senate Bill 341. It would expand the civil statute to cover viable fetuses but would apply only to new cases.
State legislators from Indianapolis have authored bills that would create a sentence enhancement for the death of an unborn child at any stage of development. The penalty -- added to a sentence when prosecutors prove the defendant caused the unborn child's death while committing a crime -- would be equal to the crime's "statutory advisory sentence." The advisory sentence is that laid out in Indiana law before any mitigating or aggravating factors are considered that could shorten or lengthen a prison term.
In a murder case where the mother was the victim, the enhancement would add up to 55 years to the prison sentence.
» Senate Bill 236: [Sentence enhancement for feticide.] Applies to murder or felony murder cases. The sponsor, Sen. James W. Merritt Jr., R-Indianapolis, also plans to add attempted murder. Senate Judiciary Committee Chairman Richard Bray, R-Martinsville, said the bill will get a hearing as soon as next week.
» House Bill 1698: Similar to the Senate bill, but the proposal by Rep. Mike Murphy, R-Indianapolis, also covers a wide array of crimes. The bill, co-authored by David Yarde, R-Garrett, has not been set for a hearing in the House Judiciary Committee.
Some background. This ILB entry from April 30, 2008, is headed "Interesting juxtaposition of legal views this week." This ILB entry from June 30, 2008, is headed "Tragic cases often spur fetal homicide laws" The entry includes several useful links, including one to the National Conference of State Legislatures resource on "Fetal Homicde," last updated Nov. 2008.
More background. Senate Bill 341, referenced at the end of today's story, applies to wrongful death or injury of a child, not to the crime of feticide. It specifies that the law concerning the wrongful death or injury of a child: (1) does not apply to a legally performed abortion; and (2) applies to a fetus that has attained viability. Authored by Senators Becker and Steele.
The bill would redefine "Child" in the civil statute, IC 34-23-2-1, to include "a fetus that has attained viability (as defined in IC 16-18-2-365)."
If this rings some bells for readers, it may be because this week, in the case of In Savannah Linley Ann Nelson Ramirez, by her father, Stephen Ramirez v. James A. Wilson and Suzy-Q Trucking (see ILB 1/29/08 summary here, 5th case), plaintiff unsuccessfuly contended that "that S.R., a full-term and viable fetus, should be considered a “child” pursuant to IC 34-23-2-1."
The COA, in a divided opinion, said "no," citing the Supreme Court's 2002 ruling in Bolin v. Wingert, where, based upon the language of the statute, the Supreme Court ultimately concluded that "the legislature intended that only children born alive fall under Indiana's Child Wrongful Death Statue."
Environment - Hazardous chemical and liquid fertilizer spills in the news
"Toxic soup in St. Marys: Chemicals spill from Essex Group; river ice masks extent of fish kill" is the headline to a story today by Dan Stockman in the Fort Wayne Journal Gazette. Some quotes:
A wire factory spilled hundreds of gallons of hazardous chemicals into the St. Marys River along the Rivergreenway and upstream from two popular parks, but state environmental officials said there is no risk to human health."Well shut, test wells to be drilled after liquid fertilizer spill: Former Stanley Fertilizer tank leaked about 500 yards from Franklin Park site" is the headline to this story today by Bruce C. Smith in the Indianapolis Star. Some quotes:
The spill, which involved chemicals that can burn the skin even when diluted, occurred Jan. 22 and was discovered Jan. 23. Essex Group, 1601 Wall St., notified state and federal officials that an estimated 300 gallons of a chemical mixture had spilled from a rooftop tank.
The tank was surrounded by a containment vault, but the chemical spilled out of the vault and into a stormwater collection system that drained into the river just north of Taylor Street, according to a report filed by Essex with the National Response Center.
The chemical mixture was about 50 percent phenol, about 40 percent petroleum distillates, and about 10 percent cresylic acid, Indiana Department of Environmental Management spokeswoman Amber Finkelstein said. Containing and cleaning up the spill has been difficult because the river is covered by a layer of ice.
Phenol is corrosive and even when diluted can cause serious burns after prolonged contact, according to National Library of Medicine data. Petroleum distillates are toxic and flammable, while cresylic acid can cause severe burns. In 1992, an Essex worker was burned on about 40 percent of his body in a cresylic acid spill inside the facility. * * *
The spill occurred just across the river from the Rivergreenway trail and just upstream from Swinney Park and Headwaters Park, but parks department officials did not know about the spill until contacted by The Journal Gazette on Friday. IDEM’s Finkelstein said the agency contacted the Fort Wayne Fire Department and local homeland security officials.
Fire department spokeswoman Susan Banta said the department did not contact the parks department because “we were not asked to make an official response.”
Local Director of Homeland Security Bernie Beier said parks officials were not notified because there was no danger to humans outside of the immediate area of the spill.
“IDEM felt the majority of it was trapped in the ice,” Beier said.
He said IDEM’s air testing showed there was no vapor threat outside the area and no threat from the water beyond where crews were already working to remove the ice.
“Had IDEM said, ‘There is a risk or a potential risk or we can’t verify the risk,’ there would have been more notifications,” Beier said. “They’re the ones that said there’s no threat to people beyond the immediate spill area.”
Plainfield has turned off a municipal water well as a precaution and hired a firm to monitor ground water after chemicals leaked into storm sewers from a nearby liquid fertilizer storage tank.
The Town Council voted this week to spend up to $20,000 to have test wells drilled and monitored for chemicals moving toward the well in Franklin Park.
Plainfield has several other wells in other locations, so the town has plenty of safe water, according to Town Engineer Tim Belcher.
An Indiana Department of Environmental Management report about the December incident indicates that 2,000 to 3,000 gallons of agricultural fertilizer leaked from an old storage tank at the now-closed Stanley Fertilizer Co., 423 N. Vine St.
The spill is about 500 yards from the well in Franklin Park, which is turned off until the hazard is removed, according to town officials.
"Our biggest concern after the initial containment was that the spill occurred within what we consider a wellhead protection area," Belcher said.
The Stanley business is "within the estimated one-year time of travel," he said, meaning the period of time for water or contaminants to move underground to the well.
"Within that boundary, spills such as this are of more concern because they have the potential to reach our well."
Emergency work to contain the fertilizer leak also disclosed strong odors of diesel fuels in the soils up to a foot deep on the site, according to the IDEM report. The property was a bulk petroleum storage facility before the Stanley family bought it in the 1960s for a fertilizer business. That operation has been closed for about a decade.
Town officials said members of the Stanley family have claimed that the fertilizer in the tank was old and diluted with water.
Field tests conducted by IDEM found the spilled chemical, which can cause fish kills in streams, was 13 percent nitrogen and 38 percent phosphorous.
A series of "sentinel" wells will be drilled by Astbury Environmental Engineering to monitor the concentration and direction of travel of the suspect chemicals, Belcher said. The goal is to get an early warning before any contaminant can reach the city water source.
"It is possible that the (chemicals) will dissipate and not pose any problem, but we'll do these tests to find out what's going on."
The town will ask for repayment of its expenses from Stanley Fertilizer.
The spill was discovered Dec. 22 when chemicals ran into the streets around the property.